APPLICATION
FOR LEAVE TO APPEAL
MAKARAU
JCC:
This
is an application for leave to appeal against a decision of the
Supreme Court handed down on 25 November 2021.
Holding
that there was no proper appeal before it, the Supreme Court struck
from its roll the appeal that the applicant had noted against a
judgment of the High Court.
Using
its review powers, the Supreme Court proceeded to set aside the
proceedings of the High Court. In doing so, it held that the High
Court did not have the requisite jurisdiction to determine the matter
as it did or at all.
It
is this order that the applicant intends to appeal against, with
leave.
Background
The
applicant was arrested by the police on 23 November 2017. He is
facing one count of contravening the Prevention of Corruption Act
[Chapter
9.16],
and one count each of contravening sections 174(1)(a) and 126 of the
Criminal Law (Codification and Reform) Act [Chapter
9.23].
These relate to abuse of office as a public officer and fraud
respectively. He is appearing before the Magistrates Court.
Prior
to his arrest by the police, the applicant alleges that he was
unlawfully arrested by the military police, in particular, seven men
in military uniform and armed with assault rifles. He further alleges
that these seven men in military uniforms armed with assault rifles
blindfolded him and took him to an unknown place where they forcibly
held and interrogated him for nine days.
Thereafter
the applicant was formally arrested by the police.
Upon
being arraigned before a magistrate, the applicant pleaded with the
court not to be placed on remand for the alleged offences as his
arrest was unlawful.
In
essence, he was seeking as consequential relief, a permanent stay of
his prosecution on the three charges.
In
this regard he contended that his arrest, for the purposes of the
law, had commenced when he was arrested by the unknown military
personnel, agents of the State and that such arrest was patently
unconstitutional as he was not brought before a court within the
forty-eight hours stipulated in the law.
The
arrest and torture of the applicant by the men in military uniform
was not challenged by the first and second respondents before the
magistrate or in any proceedings thereafter.
In
arguing that the applicant's rights had been duly observed upon his
arrest, the first and second respondents confined their submissions
to the events that unfolded after the formal arrest of the applicant
by the police.
Ruling
on the unlawful arrest and torture of the applicant, the trial
magistrate found that the applicant had failed to prove that the
seven men in military uniform and armed with assault rifles were
agents of the State. After further finding that his subsequent arrest
by the police was procedural, the trial magistrate placed the
applicant on remand, denied him bail and remanded him in custody.
The
applicant was in due course granted bail by the High Court. In doing
so, the High Court expressed its disquiet over the failure by the
trial magistrate to properly investigate the alleged infringements of
the applicant's rights and freedoms.
The
trial of the applicant commenced.
Whilst
it was underway, the applicant approached the High Court under
section 85(1) of the Constitution, once again seeking a permanent
stay of the criminal proceedings against him on the basis that his
rights and freedoms had been infringed as detailed above.
At
the hearing of the matter before the High Court, the issue of the
jurisdiction of that court to determine the matter during the
pendency of the criminal trial before the magistrates court arose.
The
High Court dismissed the contention that it did not have the
requisite jurisdiction to determine the matter. It nevertheless went
on to dismiss the matter on the basis that the torture of the
applicant was for no apparent reason in that it had not elicited any
evidence or confession from the applicant. Being gratuitous, the
torture of the applicant by the military was at law not a sound basis
for permanently staying the criminal proceedings against him, the
High Court went on to rule.
Dissatisfied
with the dismissal of his application by the High Court, the
applicant noted an appeal to the Supreme Court. It is not necessary
that I set out the grounds of the appeal. This is so because, in its
decision, the Supreme Court neither determined nor adverted to these
grounds.
It
is however pertinent to record that the finding by the High Court
that it had jurisdiction in the matter was not appealed or
cross-appealed against.
Mero
motu,
the Supreme Court raised the issue.
It
thereafter properly invited the parties to make additional
submissions addressing the legal position governing the jurisdiction
of the High Court in the matter.
It
was the view of the Supreme Court, and correctly so, that the
provisions of section 175(4) of the Constitution were integral to the
appeal that was before it and, in particular, on the issue it had
raised with the parties.
This
is the provision that details the procedure to be adopted when a
constitutional matter arises during any court proceedings.
The
Supreme Court was keenly alive to the pending criminal proceedings
before the magistrate's court, and during which proceedings the
constitutional question of the legal redress of the applicant's
unlawful arrest and torture had arisen.
Consequently,
the Supreme Court found that by approaching the High Court during the
pendency of the proceedings before the Magistrates Courts, the
applicant had contradicted the precepts of certainty of process as
articulated by this Court in Chihava
& Ors v Principal Magistrate & Anor
2015 (2) ZLR 31 (CC).
I
advert to this point in greater detail below.
In
the final analysis, the Supreme Court held that the ratio
decidendi
in Chihava
applied
in full force to the facts before it. It also made the following four
observations:
1.
That the Magistrates Court had vantage over the High Court in that it
had heard evidence on the matter whereas the High Court was relying
on an affidavit;
2.
That the Magistrates Court had jurisdiction in the matter;
3.
That the proceedings before the High Court had the potential to
disrupt the proceedings in the Magistrates Court; and
4.
That the approach to the High Court was novel and was not supported
by an elaborate procedure as the one set out in the rules of the
Constitutional Court.
As
a result, the decision by the High Court was found, rather
euphemistically, to have been made on no sound jurisdictional basis
and was accordingly set aside. In short, the Supreme Court held that
the High Court had no jurisdiction in the matter.
The
Intended Appeal
In
the event that he is successful in the application for leave, the
applicant intends to appeal against the decision of the Supreme Court
on the following three grounds:
“1.
The court a
quo
misdirected itself in not finding that the fact that the High Court
is a 'superior court of record' under section 170 of the
Constitution prohibited the Supreme Court from regarding the High
Court as one of the 'inferior courts of justice' referred to in
section 25 of the Supreme Court Act [Chapter
7.13].
2.
The court a
quo
misdirected itself and erred in law in applying the precepts set out
in Chihava
& Ors v Principal Magistrate & Anor
2015 (2) ZLR 31 (CC) to take away the jurisdiction of the High Court
to determine the appellant's application brought to it under
section 85 of the Constitution, notwithstanding the pendency of
criminal proceedings in the magistrates court.
3.
The court a
quo
erred and misdirected itself in not finding that once the High Court,
rightly or wrongly, assumed jurisdiction and determined on the
merits, an application under section 85 of the Constitution, the
resultant judgment could not be a nullity.”
The
broad issue that falls for determination in this application is
whether it is in the interests of justice that the applicant be
granted leave to appeal to this Court against the order of the
Supreme Court.
The
narrow and more specific issue is whether the decision of the Supreme
Court was on a constitutional issue that was clearly articulated and,
additionally, whether the intended appeal enjoys prospects of
success.
I
define the issues narrowly in this fashion following the requirements
of the law governing the determination of applications for leave to
appeal to this Court.
The
Law
The
law that governs applications for leave to appeal to this Court is
settled and appears in a line of cases that remain undisturbed since
the adoption of the Constitution.
A
judge or court determining such an application must be satisfied that
the matter raised in the intended appeal is a constitutional matter
that has been clearly and concisely set out. This is so because this
Court, being a specialized court, only enjoys jurisdiction in
constitutional matters.
Further,
the judge or court must be satisfied that the constitutional matter
enjoys prospects of success on appeal.
This
in turn serves to reserve the jurisdiction of this Court only to
deserving cases.
See
Cold
Chain (Pvt) Ltd t/a Sea Harvest v Makoni
2017 (1) ZLR 14 (CC); Muza
v Saruchera
CCZ 5/19; Bonnview
Estate (Pvt) Ltd v Zimbabwe Platinum Mine (Private) Limited &
Ministry of Lands and Rural Resettlement
CCZ6/19; Mbatha
v National Foods CCZ6/21 and Konjana v Nduna
CCZ9/21.
Applications
for leave to appeal to this Court are made in terms of Rule 32 of the
Constitutional Court Rules, 2016.
I
note in passing that Rule 32 does not, as does its counterpart Rule
21(8) which deals with applications for direct access to this Court,
set out the factors to be considered as being in the interests of
justice.
Therefore,
in assessing whether or not it is in the interests of justice to
grant an application for leave to appeal, the practice of this Court
has been guided by the past decisions of this Court as set out in the
authorities referred to above.
Regarding
prospects of success, the practice has been to look for more than an
arguable case.
Prospects
of success are established if on appeal, this Court is likely to
reverse the finding of the lower court or to materially change the
order a
quo.
Analysis
I
find that the intended appeal will raise a constitutional matter.
This
is the issue of the jurisdiction of the High Court in an application
brought in terms of section 85(1) of the Constitution for the
enforcement of a fundamental right or freedom during the pendency of
other court proceedings.
Section
85(1) of the Constitution is the provision that confers the requisite
constitutional jurisdiction on courts to enforce a fundamental right
or freedom. Conversely, it is the provision that guarantees the right
of all persons to access a court for the enforcement of fundamental
rights and freedoms.
The
issue of the jurisdiction of the High Court in the circumstances of
this matter will entail an interpretation of the right of access to a
court as provided for in section 85(1) and whether it is to be
enjoyed in all circumstances, at all times and without any
impediment.
It
is without a doubt a constitutional matter.
I
draw confidence in my finding above from the fact that the
determination of whether or not this Court had jurisdiction in
Chihava
was, unavoidably and correctly so, regarded by this Court as a
constitutional matter. That matter similarly involved an
interpretation of section 85(1) of the Constitution. Indeed, the
facts in Chihava
to
a large extent, mirror the facts of the intended appeal.
In
both instances, the applicants approached another court for the
purported enforcement of their fundamental rights and freedoms during
the pendency of other proceedings.
The
applicant having cleared the first hurdle, I now turn to consider
whether the issues raised in the intended appeal have any prospects
of success.
As
stated above, prospects of success are established if, on appeal,
this Court is likely to reverse the decision of the Supreme Court or
to alter it in a material respect.
A
prima
facie
case,
or
an
interesting or arguable case is not the requisite criterion and, as a
result, fails to clear the bar.
The
first ground of appeal raises the issue of the review jurisdiction of
the Supreme Court over the proceedings and decisions of the High
Court.
It
is the appellant's contention that the High Court is a “superior
court of record” under section 170 of the Constitution and that
this in turn prohibits the Supreme Court from regarding it as one of
the “inferior courts of justice” referred to in section 25 of the
Supreme Court Act [Chapter
7.13].
As
correctly noted by the applicant, section 170 of the Constitution
provides that the High Court is a superior court of record.
The
term “superior court of record” is however not defined in the
Constitution.
Mr
Madhuku
for the applicant relied on the remarks by the Supreme Court in
Chidyausiku
v Nyakabambo
1987 (2) ZLR 119 (S) where the court held that the High Court was not
an inferior court as contemplated by section 25 of the Supreme Court
of Zimbabwe Act.
Whilst
this decision has not been specifically overruled subsequently, it
has been studiously and routinely ignored by the Supreme Court
itself.
Quite
apart from the fact that the Supreme Court is not bound by its own
decisions, this is one decision that is well known in the
jurisdiction for the fact that it has been ignored more times than it
has been applied.
For
the purposes of determining this application, it is not necessary
that I debate and determine the stare
decisis
effect of Chidyausiku
v Nyakabambo (supra)
generally or seek to reconcile it with the numerous later decisions
of the Supreme Court that have clearly gone against it. This is so
because it is my considered view that this application and the
intended appeal turn and fall by the way side on the basis of the
second issue raised by the applicant.
In
the second ground of the intended appeal, the applicant contends that
“the court a
quo
misdirected itself and erred in law in applying the precepts set out
in Chihava
& Ors v Principal Magistrate & Anor…to
take away the jurisdiction of the High Court to determine the
appellant's application brought to it under section 85 of the
Constitution, notwithstanding the pendency of criminal proceedings in
the Magistrates Court”.
I
cite in the contention the first ground of the intended appeal in
full.
That
the decision of the Supreme Court was squarely based on the ratio
decidendi in Chihava
is
not in dispute.
The
ratio
decidendi
in Chihava,
correctly
understood, has a fairly broad and far-reaching impact on the right
of persons to access a court in terms of section 85(1) of the
Constitution for the enforcement of fundamental rights and freedoms
in circumstances where section 175(4) can also and should
consequently apply.
I
understand the
ratio decidendi
of the case to lay down the legal proposition, unequivocally and
without exception, that any person who is appearing before any court
and intending to raise and rely on any alleged violation of their
fundamental rights or freedoms for any relief, must invoke the
provisions of section 175(4) of the Constitution or forever lose
their right to claim relief for such violations.
Put
differently, Chihava
holds that the right of any person to access a court in terms of
section 85(1) of the Constitution, if that person is already a party
to proceedings before another court, is completely negated and the
constitutional jurisdiction of all other courts is ousted.
I
pause to note that this negation of the right to access other courts
or the complete ouster of the jurisdiction of other courts other than
the court wherein the proceedings are underway, is not a mere rule of
practice and procedure which, in the interests of justice, may be
departed from. It is an interpretation of the Constitution by this
Court. It therefore forms part of the body of the constitutional law
of this jurisdiction on access to the courts to enforce a fundamental
right or freedom.
In
consequence of the above, the broad position of the law then becomes
that where a person is already before a court in any proceedings, an
approach to any other court in terms of section 85(1) for the
enforcement of a fundamental right or freedom outside the provisions
of section 175(4) is legally incompetent.
It
begets a nullity for want of jurisdiction.
The
other court so approached is stripped of its constitutional
jurisdiction under section 85(1) by the availability of the procedure
under section 175(4).
The
above interpretation of the Constitution, by implication, rightly or
wrongly, also supersedes and overrules the common law position that
grants the High Court inherent jurisdiction over all persons and all
matters.
It
would appear that the legal position that I have outlined above,
unduly restrictive on the right to access courts for the enforcement
of fundamental rights and freedoms as it seems to be, is the position
that obtained under the repealed constitution.
It
was the settled position under that constitution that any
constitutional issues arising in a lower court during the course of
any proceedings had to be referred to this Court in terms of section
24(2) and could not be brought, pursuant to section 24(3), as a fresh
cause of action under section 24(1): (See Jesse
v Attorney-General 1999
(1) ZLR 121 at 122D (S)).
Notwithstanding
the adoption of the current Constitution, the position of the law
remains unchanged.
Section
175(4) of the Constitution is the equivalent of section 24(2) of the
repealed Constitution whilst section 85(1) is the current version of
section 24(1), albeit improved.
That
the two provisions are located in different chapters of the
Constitution detracts not from their effect and import as interpreted
by this Court.
If
I have correctly understood its ratio
decidendi,
then
Chihava
is authority for the simple proposition that where any person is
before any court on any non-constitutional matter, but intends to
seek redress for the alleged breach of his or her fundamental rights
and/or freedoms arising in connection with that matter, he or she
must raise the alleged breach before that court and invoke the
provisions of section 175(4) if he or she intends to have the matter
determined by this Court.
The
party may also petition that court directly for any appropriate
relief.
The
net effect of this position is that any purported approach to another
court in terms of section 85(1) under the circumstances, is not only
impermissible but is a nullity as the constitutional jurisdiction of
all other courts, the High Court included, is not only arrested but
is lost by operation of law.
The
import of the decision in Chihava
is thus not only to render section 175(4) as regulating access to the
Constitutional Court on issues arising during proceedings before any
court as argued by Mr
Madhuku,
but to render section 85(1) redundant and of no force and effect
where proceedings involving the applicant are pending before a court.
On
the basis of the above, I must reject the argument by Mr
Madhuku
that section 85(1) of the Constitution creates unimpeded access to
the High Court.
It
does not always do so.
It
only does so where there are no pending proceedings before any other
court to which the applicant is a party.
In
casu,
the applicant was appearing before the magistrates court where he
correctly raised the allegations of the breach of his fundamental
rights. By the mere fact that he was appearing before the magistrates
court where he was obliged to raise such allegations, the
constitutional jurisdiction of all other courts under section 85(1),
the High Court and this Court included, was thereby extinguished and
lost.
This
is the import of the ratio
in Chihava
which
the Supreme Court correctly applied.
The
ratio
of
the Chihava
case
however does not extinguish the right of the applicant to access this
Court under section 85(1) of the Constitution, alleging that a lower
court has wrongfully refused a request for a referral made under
section 175(4) of the Constitution.
The
cause of action in that matter will be the refusal by the lower court
to refer the matter to this Court and not the alleged violation of
the fundamental rights or freedoms giving rise to the referral.
It
is therefore my finding that the applicant enjoys no prospects of
success on the second ground of the intended appeal. It is most
unlikely that this Court will reverse the order of the Supreme Court
and find instead that the High Court enjoyed jurisdiction, inherent
or otherwise, in the matter.
By
parity of reasoning the third ground of the intended appeal falls by
the wayside.
The
assumption of jurisdiction by the High Court in the circumstances of
this matter was erroneous and grievously so. It begot nothing that
can be salvaged. Once it is accepted that the High Court did not have
any jurisdiction in the matter that concludes the inquiry. Its
proceedings fall away automatically by operation of law.
There
is thus no possibility in the circumstances of this matter that this
court will find, as contended by the applicant, that “the court a
quo
erred and misdirected itself in not finding that once the High Court,
rightly or wrongly, assumed jurisdiction and determined on the
merits, an application under section 85 of the Constitution, the
resultant judgment could not be a nullity”.
Disposition
The
applicant has no prospect of success on its main contention that the
High Court had jurisdiction in the matter that was placed before it.
Accordingly, his application for leave to appeal cannot succeed.
Regarding
costs, I see no justification for making an award of costs in this
matter.
In
the result, I make the following order:
The
application is dismissed with no order as to costs.
GARWE
JCC: I
agree
PATEL
JCC: I
agree
Lovemore
Madhuku Lawyers,
applicant's legal practitioners
National
Prosecuting Authority,
1st
and 2nd
respondents legal practitioners
Civil
Division of the Attorney-General's Office,
3rd
respondent's legal practitioners
