GOWORA
JCC:
[1]
The applicant approaches this Court under section 167(2)(d) as read
with section 85(1) of the Constitution of Zimbabwe. It seeks an order
declaring that the Constitution of Zimbabwe Amendment No.1 Bill,
alternatively, the Constitution of Zimbabwe Amendment No.1 Act, and
the Constitution of Zimbabwe Amendment No.2 Act are invalid.
Ultimately the applicant seeks an order that both be set aside
following a declaration of invalidity.
THE
PARTIES
[2]
The applicant herein, the Law Society of Zimbabwe, hereinafter “the
LSZ”, is a statutory corporate body set up in terms of the Legal
Practitioners Act [Chapter 27:07]. It is the body responsible for the
welfare and regulation of and for representing the legal fraternity
in the country. It is capable of suing and being sued in its own
right.
[3]
The first respondent is the Parliament of Zimbabwe (“Parliament”),
with the second and third respondents being the heads of the Senate
and the National Assembly, respectively.
The
third respondent (hereinafter the 'Speaker') has deposed to the
opposing affidavit on behalf of Parliament and the second respondent.
The
fourth respondent is the President of Zimbabwe (hereinafter referred
to as the 'President'), and the fifth respondent is the Minister
of Justice Legal and Parliamentary Affairs (hereinafter referred to
as the 'Minister').
The
sixth respondent is the Attorney-General of Zimbabwe. He is the Chief
Legal Adviser to the government and has deposed to the opposing
affidavit on behalf of the fourth and fifth respondents as well as
himself.
Mr.
Mubaiwa appears as amicus curiae.
THE
FACTS
[4]
Sometime in 2017, Parliament enacted the Constitutional Amendment
No.1 Act after it had gone through both the National Assembly and
Senate. Its promulgation was challenged in this Court on the premise
that it had not been validly enacted.
On
31 March 2020, the Court set aside the proceedings of the Senate of 1
August 2017 because a two-thirds majority had not been reached. The
Senate was directed to conduct a vote by the procedure set out in
section 328(5) of the Constitution within a prescribed period.
For
reasons not germane to this dispute, the Senate could not conduct a
vote and applied to the Court for an extension of the time to do so.
On
6 April 2021, the Senate passed the Constitution Amendment No.1 Bill
pursuant to an order of the Court granting an extension.
[5]
The applicant contends that the Constitution Amendment No.1 Bill,
alternatively, Constitution Amendment No. 1 Act 2021, is invalid for
the reason that Parliament failed to fulfil a constitutional
obligation in that:
(i)
It passed the Constitution Amendment No.1 Bill 2017 in violation of
section 147 of the Constitution;
(ii)
It failed to follow the procedure set out in section 328 of the
Constitution;
(iii)
It acted contrary to its constitutional duty under section 119 of the
Constitution in failing to protect the Constitution and promote
democratic governance in Zimbabwe;
(iv)
In conformity with its constitutional duty under section 119 of the
Constitution, it still needs to ensure that its provisions are upheld
and that it acts constitutionally and in the national interest.
[6]
On 17 January 2020, Parliament gazetted the Constitutional Amendment
No.2 Bill.
On
8 June 2020, Parliament notified the public through the Clerk to
Parliament that the Portfolio Committee on Justice, Legal &
Parliamentary Affairs was to conduct nationwide public hearings on
the Constitutional Amendment (No.2) Bill. The dates scheduled in the
notice were the 15th to 19 June 2020.
The
record shows that the hearings were conducted from 14 to 19 June
2020.
On
20 April 2021, Parliament passed the Constitutional Amendment (No.2)
Bill of 2019.
[7]
The applicant contends that Parliament failed to comply with the
provisions of section 328(4) in that it did not immediately invite
members of the public, as required by the section, to express their
views on the proposed Bill in public meetings.
The
applicant contends that Parliament should have convened meetings or
availed facilities for holding public meetings for the said
consultations. In this regard, the applicant argues that Parliament
failed to fulfil a constitutional obligation.
[8]
Consequently, it seeks relief against Parliament only, in respect of
both Constitutional Amendment No.1 Act and Constitutional Amendment
No.2 Act, more specifically an order declaring that both were
promulgated in violation of the Constitution and are thus invalid.
[9]
The respondents have all filed papers opposing the application on
various bases.
Parliament
has raised preliminary points in its opposing papers. Although the
other respondents did not raise any preliminary objections in their
sole opposing affidavit, Mr Magwaliba, on behalf of the fourth, fifth
and sixth respondents, has, in oral argument before the Court, set
out several points in limine, which I will advert to hereunder before
determining the merits of the application.
[10]
At the outset of the matter being heard, Mr. Mafukidze, who appeared
for the applicant, informed the Court that the applicant no longer
relied on section 85 of the Constitution to seek relief. He submitted
that the applicant did not seek an express declaration of rights.
Therefore, the application would be solely based on the provisions of
section 167(2)(d) in that, in respect of both matters, Parliament had
failed to fulfil its obligations under the Constitution in the manner
in which both Acts were passed into law.
[11]
The first, second, and third respondents have raised several points
in limine, which they contend are dispositive of the application,
thus obviating the need to determine it on the merits.
[12]
The fourth, fifth, and sixth respondents did not raise any objections
in the opposing affidavit or their heads of argument. The objections
were, however, raised in oral argument by counsel at the inception of
the hearing. They are all on points of law relating to the procedural
aspects of the application and therefore stand for resolution by the
Court.
This
is a trite position in our court system which requires that any issue
placed before the court by the parties must be determined and a
decision rendered in respect of the same.
OBJECTIONS
IN LIMINE BY PARLIAMENT
[13]
The first objection raised by Parliament, the first respondent
herein, is that the applicant lacks the required locus standi to
approach this court for the relief sought.
Mr.
Zhuwarara argued that the concession by the applicant that it was no
longer proceeding under section 85 of the Constitution left it
without a cause of action.
Secondly,
it is contended on behalf of Parliament that the matter is not
properly before the Court.
In
this regard, Parliament suggests that the challenge by the applicant
of both the Constitution of Zimbabwe Amendment No.1 Act and the
Constitution of Zimbabwe Amendment No.2 Act on the basis that the
respondents have failed to fulfil a constitutional obligation cannot
be bundled up in one application. The obligations sought to be
invoked are disparate and distinct.
[14]
A challenge to the alleged absence of jurisdiction on the part of the
Court raised in the opposing affidavit was not motivated in the
written submissions, nor was it moved in the oral argument. I take
the view that it has been abandoned.
[15]
The last objection is that the applicant has no causa for the relief
it seeks from the Court.
Counsel
submitted that the applicant conceded that the Constitution of
Zimbabwe Amendment No.1 Act was promulgated pursuant to an order of
court. It is the position of counsel that once the applicant accepted
that the amendment was effected in compliance with an order from the
Court, then, it cannot found a cause of action under section
167(2)(d) of the Constitution alleging that the respondents had
failed to fulfil a constitutional obligation.
SUBMISSIONS
ON BEHALF OF THE FOURTH, FIFTH AND SIXTH RESPONDENTS
[16]
Mr. Magwaliba, counsel for the fourth, fifth, and sixth respondents,
submitted that the application was invalid.
This
objection stemmed from the fact that in the founding affidavit the
applicant states that the application was premised on section
167(2)(d) as read with section 85 of the Constitution and Rule 27 of
the Constitutional Court Rules, 2016. He argued that the validity of
the application was determinable at the date of filing at which stage
the applicant had stated that it was proceeding in terms of the
provisions stated above.
Counsel
argued further that the Court enjoys exclusive jurisdiction under
section 167(2)(d), and the joinder of an application under section 85
was impermissible.
In
this instance, he argued that the combination of the two causes of
action rendered the application a nullity.
[17]
The second objection related to the relief being sought.
He
argued that the draft order was defective as it was unclear whether
the Court was being asked to invalidate the Act or the Bill.
[18]
Regarding the issue of locus standi, counsel argued that the relief
in the application was not sought in terms of section 85. The
applicant did not seek a declaratur that a fundamental right had been
violated and that consequential relief be issued by way of redress.
Consequently, the cause of action had failed to relate to the relief
being sought from the Court.
SUBMISSIONS
ON BEHALF OF THE APPLICANT
[19]
Mr. Mafukidze, on behalf of the applicant, made the following
submissions in response.
Counsel
submitted that the applicant had not sought an express declaration of
a violation of a right enshrined in [Chapter 4] of the Constitution.
As a result, he was no longer relying on section 85 for relief.
Instead,
he would pray for an order to the effect that Parliament had failed
to fulfil its constitutional obligation in passing both
Constitutional Amendment Act No.1 and No. 2 and that, consequently,
both are invalid and should be set aside.
[20]
Regarding locus standi, counsel submitted that the applicant had
standing under the Legal Practitioners Act. He contended that the
applicant had alleged that it had a substantial and direct interest
in the matter, thus establishing its standing.
He
argued further that his counterparts were misconstruing the principle
in Mudzuri's1
case and that instead of limiting standing, the authority extended
the basis on locus for any approach to the Court.
SUBMISSIONS
BY THE AMICUS CURIAE
[21]
Mr. Mubaiwa, who appeared as amicus curiae at the behest of the
Court, made the following submissions.
He
suggested that the applicant had pleaded standing under section 85 of
the Constitution. As a result, it was his view that its reliance on
section 167 for standing did not pass muster.
He
contended that the applicant must have pleaded standing under section
167, but failed to do so. The abandonment of section 85 left the
applicant needing locus standi to approach the Court.
He
prayed that as a consequence the application should be dismissed.
[22]
Mr Mafukidze, in supplementary heads of argument filed in response to
the written submissions of the amicus curiae, has raised a number of
issues relating to the appointment of the amicus curiae, the terms of
his appointment by the Court, whether it was good practice for the
parties herein to express their views on the matter and the
importance for the Court not to follow a procedure that does not
speak to the transparency of the process of appointment.
[23]
As regards the substance of the submissions by the amicus curiae,
counsel contended that an amicus should not seek the dismissal of a
matter. His contention was that the prayer by the amicus for the
dismissal of the application was irregular.
[24]
The appointment of amicus curiae in proceedings before the court is
provided for in the Constitutional Court Rules 2016. Rule 10 provides
as follows:
“10.
Amicus curiae
(1)
The Court may invite any person with particular expertise which is
relevant to the determination of any matter before it to appear as
amicus curiae and the amicus curiae, so invited shall file heads of
argument within the time stipulated by the Court.
(2)
A person with the expertise described in subrule (1) may apply to the
Court or a Judge for an order to appear as amicus curiae.
(3)
An application in terms of subrule (2) shall be made no later than
five days after the filing of the respondent's heads of argument or
after the time for filing such heads of argument has expired, and
shall —
(a)
describe the particular expertise which the applicant possesses;
(b)
describe the interests of the applicant in the proceedings;
(c)
briefly identify the position to be adopted in the proceedings by the
applicant; and
(d)
set out the submissions to be advanced by the applicant, their
relevance to the proceedings and the applicant's reasons for
believing that the submissions will be useful to the Court and
different from those of the other parties.
(4)
The Court or a Judge may, if it or he or she considers it to be in
the interests of justice, grant the application upon such terms and
conditions, including the date of filing the written argument, and
with such rights and privileges as it or he or she may determine.
(5)
An amicus curiae shall have the right to file heads of argument which
raise new contentions which may be useful to the Court and do not
repeat any submissions set forth in the heads of argument of the
other parties.
(6)
An amicus curiae shall be limited to the record on appeal,
application or referral and shall not add thereto.
(7)
Except in the most exceptional circumstances, no order of costs shall
be made either for or against any person appearing as amicus curiae.”
[25]
There is no suggestion by counsel that the appointment of the amicus
was not done in terms of the rules of court.
Further,
there is no suggestion that, apart from praying for the dismissal of
the application, the amicus associated himself in any other manner
with any party in the dispute.
The
role of amicus curiae was succinctly set out by GARWE JCC in
Mushoriwa v Parliament of Zimbabwe & Anor CCZ4/23, wherein the
learned judge said the following:
“[62]
The role of amicus curiae invited by the court is to provide
assistance in developing answers to difficult, and usually unsettled,
questions of law.
He
or she is there to provide cogent and helpful submissions that assist
the court.
Amicus
curiae can raise new contentions which he or she considers to be
useful to the court and which contentions would otherwise not be
drawn to the attention of the court. However he or she cannot
introduce new contentions that are not based on the record and which
require fresh evidence.
In
making submissions amicus can choose a side it wishes to join unless
requested by the court to urge a particular position. In other words,
whilst the primary obligation of amicus curiae is to contribute new
contentions to the court, there would be nothing amiss in amicus
reiterating a party's submissions, so long as this is done
colourlessly and objectively, without the impression of bias being
given in favour of a particular party.
In
this regard attention may be drawn to the South African
Constitutional Court decisions in Hoffman v South African Airways
2001 (1) SA 1 CC, 2000 (11) BCLR 1211 (CC) at para 63; In Re: Certain
amicus curiae applications; Minister of Health and Others v Treatment
Action Campaign and Others (CC78/02) (2002) ZACC 13 95 July 2002).”
[26]
Similar remarks were also made by HLATSHWAYO JCC, in Gonese v
President of the Senate & Ors CCZ2/23. At para 21-23 the learned
judge remarked thus:
“[21]
An amicus curiae is, as of right, entitled to raise new contentions
which he considers to be useful to the Court.
In
Hoffmann v South African Airways 2001 (1) SA 1 (CC) at 27, para 63,
the South African Constitutional Court observed that amici assist the
Court 'by furnishing information or argument regarding questions of
law or fact'.
Further,
in In re Certain Amicus Curiae Applications: Minister of Health and
Others v Treatment Action Campaign & Ors 2002 (5) SA 713 (CC) at
para 5 it was observed:
'The
role of an amicus is to draw the attention of the Court to relevant
matters of law and fact to which attention would not otherwise be
drawn.… an amicus has a special duty to the Court. That duty is to
provide cogent and helpful submissions that assist the Court.'
[22]
An amicus curiae appearing upon invitation from the Court has a
unique responsibility that is distinct from that of amici curiae
appearing with the leave of the Court or appearing at the request of
the Court to represent an unrepresented party or interest.
He
or she is obliged to advance submissions that s\he considers useful
to the Court with objectivity. He or she must advance a rational,
legal and logical argument of the position he or she urges the Court
to reach.
[23]
An amicus curiae will not be faulted for reaching an incorrect
conclusion of the law, although he likely will reach a correct
conclusion by reason of his presumed disinterest.
An
amicus curiae appearing upon the Court's invitation must be
courteous to the Court and treat the actual litigants submissions
with due consideration and respect. He or she must ride on his
disinterest to settle on legal positions and resist the temptation of
subjectivism that the actual parties may, themselves, be wont to
display. Finally, s\he must put themselves in the Court's position
and wonder what conclusion he would have reached on the evidence
available and the law.”
[28]
In casu, on closer examination, it seems to me that counsel's
objections stemmed mainly from a perceived impression that the Court
was obliged to consult the parties to the dispute on the decision to
appoint amicus curiae and the identity of the person to be so
appointed.
The
suggestions from counsel imply that the court required the consent of
the parties prior to inviting a person to appear as amicus.
The
rules are clear and unambiguous.
The
decision remains that of the Court in the exercise of its inherent
jurisdiction to control its processes.
The
objection to the prayer by the amicus curiae for the dismissal of the
application was well taken.
However,
such prayer does not move the Court into reaching a conclusion to
dismiss the application on that score alone. The Court is alive to
the fact that the amicus is not a party to the dispute and that he or
she cannot move for a particular relief. That is not the role of an
amicus.
[29]
THE
CAUSE OF ACTION
I
turn next to the objections raised by the respondents. In this regard
propose to address the alleged absence of a cause of action in so far
as such causa is linked to the locus standi pleaded by the applicant.
Depending
on its determination, I will proceed to determine the remaining
objections ad seriatim.
[30]
The respondents have all taken issue with the alleged absence of a
cause of action on the papers.
Even
though Mr. Mafukidze abandoned reliance on section 85 for relief,
this remains the sole cause of action pleaded by the applicant. The
respondents contend that the cause of action has been destroyed by
the applicant failing to plead and establish locus standi in terms of
section 167(2)(d) before the Court.
[31]
I proceed to consider that objection simultaneously with the second
objection, which is that the applicant has joined two causes of
action in a single application.
This
objection is premised on the averment in the founding affidavit that
the application is brought in terms of section 167(2)(d) as read with
section 85 of the Constitution.
[32]
It is contended by the fourth, fifth, and sixth respondents that an
application under section 167 does not permit the citation of any
party other than the President or Parliament.
Under
section 167(2)(d), so the argument went, this court enjoys exclusive
jurisdiction, and the joinder of an application under section 85 is
bad at law and highly improper.
Counsel
also argued that the joinder of the two applications is improper and
renders the application a complete nullity.
[33]
This court has previously considered and determined the impropriety
of joining two causes of action in one application premised on the
above provisions.
The
jurisdiction exercised by the Court under section 167(2)(d) is clear
and distinct from that exercised under section 85.
Regarding
section 167(2)(d), only the Constitutional Court may determine
whether the President or Parliament has failed to fulfil a
constitutional obligation. On the other hand, under section 85, the
Constitutional Court enjoys parallel jurisdiction with different
courts as it permits any person to approach any court alleging the
violation of a fundamental right enshrined under Chapter 4.
Section
85(3) is pertinent in this regard. It provides that “the rules of
every court must provide for the procedure to be followed in cases
where relief is sought under subsection (1) and those rules must
ensure that……”
[34]
Thus, the conflation of the two causes of action under one
application is impermissible and bad at law.
This
Court underscores this in Zimbabwe Human Rights Association
case,supra. In that decision, PATEL JCC stated at p of the
cyclostyled judgment:
“For
the sake of completeness, it is necessary to point out that the
application, to the extent that it is premised on section 85(1) of
the Constitution, has been made without leave in terms of Rule 21 of
the Rules.
The
need to comply with the Rules generally, and with Rule 21 in
particular, was forcefully reaffirmed by MAKARAU JCC in the recent
case of Museredza & Ors v Minister of Agriculture, Lands, Water
and Rural Resettlement & Ors CCZ11-21, at pp. 9, 11, 13-14 and
15.
The
Court noted the critical distinction between the jurisdiction of a
court, which is a matter of substantive law, and access to that
jurisdiction, which is a question of adjectival or procedural law. It
was further observed that applications for leave to obtain direct
access under Rule 21 serve the dual purpose of confirming that it is
in the interests of justice to determine the matter at hand and as a
gate-keeping function to sieve matters that this Court must determine
in the interests of justice. The learned judge accordingly held, at
p15, that:
'The
practice of this Court therefore is that, where a litigant wishes to
bring a new and fresh cause and the matter is not listed in Rule 21
as one for which leave is not required, then leave must be sought
even if the matter is in the exclusive jurisdiction of the Court.'”
(My emphasis)
[35]
The above remarks apply with equal force in casu.
Not
only has the applicant not properly pleaded its cause of action, it
has also conflated two causes of action into a single in a situation
where the rules of the Constitutional Court set different procedural
requirements in any approach to the court justifying the exercise of
its specialized jurisdiction.
[36]
Section 167(5) of the Constitution provides that the Rules of the
Court must permit any person when it is in the interests of justice,
with or without leave, to bring an application directly to the Court
or to appeal directly to the Court from any other court.
Thus
section 167(5) speaks directly to those persons approaching the
Court, either directly, or wishing to appeal against the decision of
a subordinate court, on the premise that it is in the interests of
justice for the Court to grant them direct access.
In
my view, the important phrase therein is “when it is in the
interests of justice.”
There
is no suggestion by the applicant that it seeks to approach the Court
for relief and that its application falls in the category of
applications contemplated under section 167(2)(d) of the
Constitution.
From
a construction of the provisions of section 85 and section 167(2)(d),
I find that the former is an application brought in the interests of
justice whereas an application under section 167(2)(d) is not.
It
seems to me that there is a clear distinction between applications
under section 85 and applications under section 167(2)(d) of the
Constitution.
While
an application under section 85 may, depending on the peculiar
circumstances of the case, require leave of court, one under section
167(2)(d) does not, whilst the rules have therefore made provision
for the requirement of leave under Rule 21, the requirement for leave
has been dispensed with in an application under section 167(2)(d) of
the Constitution.
[37]
It seems to me therefore that the objection by counsel for the
fourth, fifth and sixth respondents on the joinder of two causes of
action was properly taken.
The
objection is therefore upheld.
[38]
Ordinarily this should be dispositive of the application but I take
the view that it is pertinent and necessary to determine the issue of
whether or not the applicant has satisfied the obligation to plead
locus standi which is linked to or premised on the cause of action
and relief sought before the Court.
LOCUS
STANDI
[39]
The starting point, in my view, is the courts approach to standing
under the common law, which is stringent and restrictive.
In
general terms, under the common law, a litigant who approaches the
court for relief must establish that he or she has a direct and
substantial interest in the matter in question. To be properly before
the court, such a litigant must show the infringement of some right
or that his or her personal interests have been adversely affected,
resulting in the litigant approaching the court for redress.
[40]
Thus, a party must show that he or she has a direct, personal, and
substantial interest in the matter in contention.
In
Zimbabwe Stock Exchange v Zimbabwe Revenue Authority SC56/07, MALABA
JA (as he then was) said:
“The
common law position on locus standi in judicio of a party instituting
proceedings in a court of law is that to justify participation in the
action, the party must show that he or she has a direct and
substantial interest in the right, which is the subject matter of the
proceedings and the relief sought.”(my emphasis)
[41]
Locus standi in judicio refers to one's right, ability, or capacity
to bring legal proceedings in a court of law.
One
must justify such right by showing that one has a direct and
substantial interest in the subject-matter and outcome of the
litigation: see Zimbabwe Teachers Association & Ors v Minister of
Education and Culture 1990 (2) ZLR 48 (HC).
See
also Dalrymple & Ors v Colonial Treasurer 1910 TS 372; Henri
Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O); United
Watch Diamond Co (Pty) Ltd & Ors v Disa Hotels Ltd & Anor
1972 (4) SA 409 (C); Deary NO v Acting President & Ors 1979 RLR
200 (G); SA Optometric Association v Frames Distributors (Pty) Ltd
t/a Frames Unlimited 1985 (3) SA 100 (O); Molotlegi & Anor v
President of Bophuthatswana & Ors 1989 (3) SA 119 (B).
[42]
In Sibanda & Ors v The Apostolic Faith Mission of Portland Oregon
(Southern African Headquarters) Inc SC49/18, HLATSHWAYO JA (as he
then was) considered the principle of locus standi and stated the
following:
“It
is trite that locus standi is the capacity of a party to bring a
matter before a court of law. The law is clear on the point that to
establish locus standi a party must show a direct and substantial
interest in the matter. See United Watch & Diamond Company (Pty)
Ltd & Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (C) at 415
AC and Matambanadzo v Goven SC23-04.”
[43]
In accordance with the general rule that the party instituting
proceedings must allege and prove that he has locus standi, the onus
of so establishing rests upon the applicant.
Consequently,
a litigant must show that he has the right or capacity to bring a
matter to court and a right to appear in court.
Locus
standi is the other side of the coin to jurisdiction.
It
is incumbent therefore that the applicant establishes locus standi in
judicio to invoke the jurisdiction of the court to exercise its power
in its favour. See Mars Incorporated v Candy World (Pty) Ltd 1991 (1)
SA 567 (AD) at 575 H.
[44]
A party instituting legal proceedings of any nature must show that
both he and the party being sued, in layperson's terms, have a real
interest in the matter being brought to court. A litigant must show
his authority to sue or be sued and that the other party is one over
which the court can exercise its jurisdiction. Any party instituting
process in which relief is sought from the court is obliged to place
itself as a party before the court seized with the dispute.
[45]
The applicant approached the court pursuant to section 85 of the
Constitution. It did so more specifically in terms of section
85(1)(e) as the association has an obligation in terms of the Legal
Practitioners Act to represent the interests of the legal fraternity
in the country.
The
applicant also states that it has “a direct and substantial
interest to see that laws are passed and/or amended in compliance
with the Constitution, including the Constitution itself.”(my
emphasis)
[46]
The contention made on the respondents behalf is that the applicant
has not pleaded any basis upon which it could be found as having
locus standi in judicio under section 167(2)(d) in terms of which it
sought relief.
[47]
In casu, in its papers, particularly the founding affidavit, the
applicant had specifically pleaded that it is approaching this Court
in terms of section 85 of the Constitution. The reasonable
expectation that arises from this statement or averment is that a
litigant approaching a court in terms of section 85 of the
Constitution intends to enforce a fundamental human right or freedom.
[48]
The approach of the courts generally on the question of locus standi
under the common law is rather restrictive.
The
South African Supreme Court of Appeal in Four Wheel Drive Accessory
Distributors CC v Rattan NO 2019 (3) SA 451 (SCA) considered the
requirements of locus standi. It held that –
“The
logical starting point is locus standi — whether, in the
circumstances, the plaintiff had an interest in the relief claimed,
which entitled it to bring the action.”
Generally,
the requirements for locus standi are these:
The
plaintiff must have a sufficient interest in the subject matter of
the litigation, usually described as a direct interest in the relief
sought; the interest must not be too remote; the interest must be
actual, not abstract or academic; and it must be a current interest
and not a hypothetical one. The duty to allege and prove locus standi
rests on the party instituting the proceedings.
[49]
On the other hand, the courts have adopted a broad and generous
approach when it comes to standing to give access to court to those
litigants wishing to enforce rights under the Constitution.
The
principle upon which the courts exercise this discretion is that the
effective enforcement of a justiciable bill of rights requires that
courts adopt a broad approach in so far as standing under the
Constitution is concerned.
[50]
This Court has extensively canvassed the issue of locus standi in the
case of Gonese & Anor v President of Zimbabwe & Ors CCZ10/18,
wherein PATEL JCC elucidated the approach of this Court as follows:
“In
the Doctors for Life case (supra), at para 218, Ncgobo J recognized
the need to find a proper balance between avoiding improper
intrusions into the domain of Parliament and ensuring that
constitutional provisions are sufficiently justiciable so as not to
be rendered nugatory. The latter consideration, in my view, behoves
this Court to adopt a liberal and generous approach to locus standi
in matters involving constitutional rights and obligations. This is
so notwithstanding the constitutional and statutory independence
enjoyed by Parliament in the control of its own affairs. See Smith v
Mutasa N.O. & Anor 1989 (3) ZLR 183 (SC) at 208 & 209. See
also Mudzuru & Anor v Minister of Justice, Legal and
Parliamentary Affairs N.O. & Ors CCZ12/2015, at pp.13-15, where
this Court, per Malaba DCJ (as he then was), eschewed the narrow
traditional conception of locus standi in favour of a broad and
generous approach to standing in constitutional matters.”(my
emphasis)
[51]
What I must consider, therefore, is whether the applicant has
sufficiently placed enough factual allegations to lead to a
conclusion that it has the necessary locus standi to approach the
Court for relief under section 167(2)(d) of the Constitution.
[52]
From a perusal of the founding affidavit, in setting out the premise
of its locus standi, the applicant avers that, in addition to it
approaching the Court in terms of section 85 on behalf of its members
it “has substantial interest to see that laws are passed and/or
amended in compliance with the Constitution including amendments to
the Constitution.”
[53]
Although the applicant pleads that it has primarily approached the
Court in terms of section 85 of the Constitution, in other portions
of its founding affidavit, it purports to approach the Court in terms
of section 167(2)(d).
As
already noted, the rules relating to standing for each approach are
different.
Whilst
the applicant brought the matter premised on an alleged violation of
a fundamental right enshrined in Chapter 4 of the Constitution, the
relief sought, however, is an order to the effect that Parliament
failed to fulfil a constitutional obligation in the manner in which
the amendments were passed into law.
[54]
Section 85(1) defines the different classes of people who may
approach the Court to seek redress in terms of that section. This
Court has settled the position that section 85(1) of the Constitution
has liberalised standing, thus allowing a person who ordinarily could
not seek redress for an injury another person had suffered to do so.
See
M & Anor v Minister of Justice, Legal and Parliamentary Affairs
N.O. & Ors 2016 (2) ZLR 45 (CC) and Mawarire v Mugabe & Ors
2013 (1) ZLR 466 (CC).
[55]
Section 167(2)(d) however, is silent on the nature of standing
entitling a person to approach this Court under it.
Rule
27 is also silent on the nature of standing that an applicant is
expected to set out.
The
generous approach to locus standi in constitutional matters does not
excuse a litigant from satisfying the Court that he or she has the
requisite standing to bring the suit.
A
comparison of the provisions of Rule 21, allowing for access under
section 85, and rule 27, in terms of which the conduct of the
President or Parliament may be impugned for failing to comply with a
constitutional obligation shows that those provisions are very
different.
Whereas
Rule 21 obliges an applicant to establish that the application is in
the interests of justice, the latter rule premises the application on
an allegation of failure to comply with a constitutional obligation.
[56]
The requirement for a litigant approaching the court in terms of a
provision of the Constitution to properly plead its cause and adhere
to the rules was emphasized in Zimbabwe Human Rights Association v
Parliament of Zimbabwe & Ors CCZ6/22, wherein PATEL JCC opined:
“I
should also highlight the other imperative of the rules of practice
and procedure to the effect that the pleadings relied upon by every
litigant must be framed with crystal clarity to enable the court and
the other parties involved to comprehend and respond to that
litigant's cause of action and assertions.
This
aspect was crisply underscored by Garwe JA (as he then was) in Medlog
Zimbabwe (Pvt) Ltd v Cost Benefit Holdings (Pvt) Ltd 2018 (1) ZLR 449
(S), at 455G:
'In
general the purpose of pleadings is to clarify the issues between the
parties that require determination by a court of law.'
After
citing various authorities, both in this jurisdiction and elsewhere,
the learned judge concludes, at 457G:
'The
position is therefore settled that pleadings serve the important
purpose of clarifying or isolating the triable issues that separate
the two litigants. It is on those issues that a defendant prepares
for trial and that a court is called upon to make a determination.
Therefore a party who pays little regard to its pleadings may well
find itself in the difficult position of not being able to prove its
stated cause of action against an opponent.'” (My emphasis)
Attention
may also be drawn to the cautionary sentiments of MAKARAU JCC in
Mliswa v Parliament of the Republic of Zimbabwe CCZ2-21, on the need
to plead one's cause of action with precision.
[57]
In casu, a perusal of the founding affidavit reveals that even though
the applicant pleaded locus standi under section 85, there is no
cause of action linked to section 85 on the papers. Instead, all the
averments in the affidavit point to an alleged failure to fulfil a
constitutional obligation on the part of Parliament.
[58]
It seems to me that the applicant, in framing the application, wished
to place itself before the Court under section 85 in order to
establish its locus standi, but sought relief under section 167(2)(d)
of the Constitution.
It
is apparent that the applicant assumed and, was under the
misapprehension that it was entitled to plead both section 85 and
section 167(2)(d) as the vehicle to place itself before the Court.
What
an applicant needs to plead to establish locus standi under section
167(2)(d) was clarified by the Court in Chirambwe v President of the
Republic of Zimbabwe & Ors CCZ4/23.
This
Court remarked as follows from para 40 of the judgment:
“……………………..
That the new Constitution expanded the locus standi of persons
seeking to approach the court is now settled. For example, in direct
applications brought under section 85(1) of the Constitution, torch
bearers are now permitted to seek redress on behalf of the general
public or in the interests of a group or class of persons.
In
respect of an application alleging that the President or Parliament
has failed to fulfil a constitutional obligation, Rule 27 of the
Constitutional Rules, 2016 requires an applicant to depose to an
affidavit setting out the constitutional obligation in question and
what it is alleged the President or Parliament failed to do in
respect of such obligation.
[40]
That the locus standi of applicants seeking constitutional protection
and enforcement has been extended is now accepted by this Court.
In
Everjoy Meda v (1) Maxwell Matsvimbo Sibanda (2) Zambe Nyika Gwasira
(3) The Sheriff of the High Court of Zimbabwe (4)The Registrar of
Deeds CCZ10/2016, MALABA CJ made pertinent remarks at p5 of the
judgment that:
“The
purpose of the section is to allow litigants as much freedom of
access to the courts on questions of violation of fundamental human
rights and freedom with minimal technicalities …”
Similarly
in Innocent Gonese (2) Jesse Majome v (1) The President of Zimbabwe
(2) Parliament of Zimbabwe (3) Minister of Local Government, Public
Works and National Housing N.O. CCZ 10/2018, PATEL JCC, writing for
the court, remarked at pp13-14 of the judgment that:
“…
the
latter consideration, in my view, behoves this Court to adopt a
liberal and generous approach to locus standi in matters involving
constitutional rights and obligations…… See also Mudzuru &
Anor v Minister of Justice, Legal & Parliamentary Affairs N.O. &
Ors CCZ12/2015 at pp13-15 where this Court, per MALABA DCJ (as he
then was), eschewed the narrow traditional conception of locus standi
in favour of a broad and generous approach to standing in
constitutional matters…. In my view, the applicants have an
unquestionable right both as citizens and as legislators, to
vindicate any perceived violation of the Constitution….
[41]
Considering the whole tenor of the current Constitution and the cases
cited above, I have no doubt in my mind that it is no longer a
requirement for an applicant in a constitutional application, such as
the present, to demonstrate that a particular constitutional right
has been violated in respect of him/her personally.
The
applicant makes it clear that he approaches the court in his capacity
as a citizen and resident of Zimbabwe. The point in limine taken on
this aspect must therefore fail.”
[59]
Given the above dicta as clearly expressed by this Court, it is
apparent that the applicant must aver in its affidavit facts which,
if proved, would establish a failure to fulfil a constitutional
obligation.
The
complete absence of a factual basis upon which to approach the Court
for relief under section 167(2)(d) may leave a litigant without
obtaining relief.
[60]
When describing the nature of the application, the applicant stated
that it was an application brought in terms of section 167(2)(d) as
read with section 85 of the Constitution.
This
is all that it pleaded in justifying its approach to the Court under
section 167(2)(d) of the Constitution.
This
must be read in conjunction with its claim to locus standi under
section 85 wherein it states that it has a direct and substantial
interest to see that laws are passed and/or amended in compliance
with the Constitution, including amendments to the Constitution
itself.
This
statement is vague as it only speaks to laws being passed and/or
amended in compliance with the Constitution, including amendments to
the Constitution itself. It does not make specific reference to the
intention to hold Parliament to account and the standing upon which
the applicant considers that it is clothed with the requisite locus
standi to do so.
This
is against the settled position that legal standing should be pleaded
or established.
[61]
The need to comply with the rules in any application under the
Constitution was reaffirmed by PATEL JCC in Zimbabwe Human Right
Association v Parliament of Zimbabwe & Ors, (supra) wherein the
learned judge stated:
“Having
regard to the relevant passages in the founding affidavit that I have
referred to earlier, it is abundantly clear that the applicant has
predicated its locus standi on section 85(1) of the Constitution. On
the other hand, its cause of action is specifically founded on the
alleged failure of the first and second respondents to fulfil their
constitutional obligations. Thus, the applicant's claim to activate
the jurisdiction of this Court is exclusively anchored in section
167(2)(d) of the Constitution. This is then mirrored in the
declaratory and substantive relief that it seeks both of which are
confined to the juridical ambit of section 167(2)(d). The order
prayed for makes no mention whatsoever of any infringement of a
fundamental right giving rise to locus standi under section 85(1) and
the jurisdictional competence of this Court under that provision.
In
essence, what the applicant has purported to do is to proceed under
two mutually exclusive provisions of the Constitution, viz. section
85(1) and section 167(2)(d).
This
course of action was pointedly frowned upon in Central African
Building Society v Stone & Ors SC15-21, at p.17, para. 38, where
GWAUNZA DCJ observes that:
“….
an application under section 85 of the Constitution should not be
raised as an alternative cause of action…. . Section 85(1) is a
fundamental provision of the Constitution and an application under
it, being sui generis, should ideally be made specifically and
separately as such.”
[62]
I find myself in agreement with the dicta in the above authorities
and I respectfully associate myself with the remarks therein.
The
applicant was obliged to plead its locus standi with the precision
and clarity required. It ought to have pleaded a cause of action
properly starting with locus standi, thus enabling the court to
exercise its special jurisdiction under section 167(2)(d) of the
Constitution.
I
find that in the circumstances, the matter can be resolved in favour
of the respondents. The applicant, therefore, has not established
locus standi in judicio to approach the court for relief under
section 167(2)(d) of the Constitution.
DISPOSITION
[62]
Thus, it is the duty of the party instituting court proceedings to
make out a case that he or she has locus standi to approach the Court
for appropriate relief and that the Court can exercise jurisdiction
over the party on the other side.
If
he fails to do so, his case will fail. He will not have an
opportunity to correct his error.
An
opposing party can raise the issue of an absence of locus standi at
any time in the proceedings.
The
Court may not condone the lack of locus standi, even if the parties
agree between them to litigate with one another. If locus standi is
absent, the proceedings are invalid.
[63]
While the question of locus standi, to an extent, is a procedural
issue, it is also a matter of substance. It concerns the sufficiency
and directness of a person's interest in litigation justifying a
basis for that person to be accepted as a litigating party. The
sufficiency or the existence of the requirement of interest depends
on the facts of each case. It is for the party instituting
proceedings to allege and prove its locus standi.
[64]
The onus to establish any issue rests on that party relying upon it.
It
is thus necessary for a party in all cases to allege in its pleadings
facts sufficient to show that it has locus standi to bring an action.
This applies to all proceedings, whether by application or summons.
The
applicant has not met the onus to establish locus standi in judicio.
[65]
In addition, the applicant has conflated two causes of action and, in
practical terms, this resulted in the applicant placing itself out of
the Court's jurisdiction. The application must therefore fail and
should be dismissed.
[66]
In opposing the application, the respondents prayed for the
application to be dismissed with costs.
The
prayer for costs was not persisted with in argument.
This
is a proper approach as the general principle is that courts should
not order costs against the losing litigant in constitutional matters
lest deserving litigants are discouraged from approaching the courts
for redress.
[67]
In the premises, I make the following order:
The
application is dismissed with no order as to costs.
GARWE
JCC: I agree
MAKARAU
JCC: I agree
HLATSHWAYO
JCC: I agree
PATEL
JCC: I agree
UCHENA
AJCC: I agree
MAKONI
AJCC: I agree
Law
Society of Zimbabwe, applicant's legal practitioners
Chihambakwe
Mutizwa and Partners, 1st, 2nd and 3rd respondents legal
practitioners
Civil
Division of the Attorney-General's Office, 4th, 5th and 6th
respondents legal practitioners
1.
Mudzuri & Anor v Minister of Justice, Legal and Parliamentary
Affairs 2016 (2) ZLR 45 (CC)
