Urgent
Court
Application
ZHOU,
CHAREWA and MUSHORE JJJ:
Introduction
1.This
judgment is in respect of two matters, HC2128/21 and HC2166/21. The
two matters were heard together because the substance of their
complaints is the same. Both matters were brought by way of
application. HC2128/21 was instituted as an urgent court application
while HC2166/21 was brought as an urgent chamber application. Both
applications are opposed by some of the respondents. Opposing papers,
answering affidavits and heads of argument were filed following a
case management meeting with the parties representatives at which the
dates for filing the papers were set by consent.
2.
In case no. HC2l28/2l the applicant, a legal practitioner and
director of the Zimbabwe Human Rights NGO Forum, cited the Minister
of Justice, Legal and Parliamentary Affairs, and all the judges of
the Constitutional Court and Supreme Court as well as some of the
judges of the High Court on the basis that they are acting judges of
the Supreme Court or have been called upon to act as such. The judges
were cited in official capacities. The Judicial Service Commission
(JSC) was joined in the proceedings at its instance at the case
management conference.
3.
In HC2166/21 the respondents cited are the JSC, the Chief Justice of
Zimbabwe Honourable Luke Malaba N.O. and the Attorney General N.O.
The applicants in that case are Young Lawyers Association of Zimbabwe
and Frederick Charles Moses Mutanda. a liberation war veteran.
Background
4.
On 7 May 2021 the Constitution of Zimbabwe Amendment (No.2) Act,
2021, became law after being assented to by the President. The
contentious aspects of the Amendment Act which are the subject of the
instant applications are found in its section 13. That section
repealed section 186 of the Constitution 2013 and substituted it with
a new section 186.
5.
Upon gathering that section 186 introduced by the Amendment would
apply to the 2nd
to 18th
respondents the applicants instituted the two applications. The
applicant in Case No. HC2l28/2l seeks the following relief:
“IT
IS DECLARED THAT:
1.
In accordance with provisions of sections 186(1)(a) and 186(2) (of
the Constitution of Zimbabwe 2013) in their original form and
notwithstanding provisions of Constitutional Amendment Number 2,
second to eighteenth respondents hold office they reach the age of
seventy years, whereupon they must by operation of law retire.
2.The
attempt to subvert the position encapsulated in the "original"
section 186(1)(a) and 186(2) of the Constitution of Zimbabwe 2013 is
contrary to law and therefore in breach of applicant's right to the
protection of the law as set out in section 56(1) of the Constitution
of Zimbabwe 2013.
IT
IS CONSEQUENTLY ORDERED THAT:
3.
LUKE
MALABA must or did at midnight on 15 May 2021 cease to hold the
office of CHIEF JUSTICE OF ZIMBABWE.
4.
Any action, conduct or deed of LUKE MALABA post the 15th of May 2021
purportedly as CHIEF JUSTICE OF ZIMBABWE is null and void and of no
effect.
5.
ln accordance with the provisions of section 181 of the Constitution
2013, with effect from midnight on the 15th of May 2021, ELIZABETH
GWAUNZA became/becomes the ACTING CHIEF JUSTICE OF ZIMBABWE until
such a time as a substantive CHIEF JUSTICE OF ZIMBABWE is appointed.
6.
In accordance with the provisions of section 181 of the Constitution
2013, with effect from midnight on the 15th of May 2021, PADDINGTON
GARWE became/becomes the ACTING DEPUTY CHIEF JUSTICE OF ZIMBABWE
until such a time as a substantive DEPUTY CHIEF JUSTICE OF ZIMBABWE
is appointed.
7.There
shall be no order as to costs."
6.
During argument counsel for the applicant abandoned the relief sought
in para 6 of the draft order and moved that the draft be amended
accordingly. We point out that notwithstanding the statement
suggesting that what is being sought in Paragraphs 3-7 of the draft
order is consequential relief, the relief is clearly in the form of a
declaration.
7.
The 2nd
to 18th
Respondents did not file opposing papers. They will therefore be
taken not to have opposed the application: see Prosser
& 35 Others v Ziscosteel Company Ltd
93-HH-201 and
Panganai
and 20 Others v Kadir & Sons (Pvt) Ltd
95-HH-026. We do not accept the submission by their counsel that they
oppose the application without filing opposing papers. This is
because the directions issued on 12 May 2021 required the respondents
to file opposing papers if they were opposing the application. Their
grounds of opposition would have to be contained in the opposing
affidavits.
8.
ln Case No. HC2166/21 the applicant sought declaratory relief as
follows:
“IT
IS DECLARED THAT:
1.
The first respondent in failing to activate the provisions of section
180 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013
and/or the provisions of section 180 of the Constitution of Zimbabwe
as amended by Constitution of Zimbabwe Amendment (No.2) Act, 2021
(No.2 of 2021) diligently and without delay violated section 324 of
the Constitution of Zimbabwe as amended.
2.
The second respondent cannot, by virtue of section 328(7) of the
Constitution of Zimbabwe, as amended, benefit from the term limit
extension as introduced by an amendment of section 186 by the
Constitution of Zimbabwe Amendment (No.2) Act, 2021.
3.
As a consequence of 2 above, the second respondent shall vacate
office as the Chief Justice of Zimbabwe on (sic) midnight of 15 May
2021.
4.
Any action, conduct, act or deed of second respondent post the 15th
of May 2021 purportedly as Chief Justice of Zimbabwe is null and void
and of no force or effect.
5.
Any attempt to continue in office by second Respondent as Chief
Justice of Zimbabwe and/or any continuation in office by second
respondent purportedly as Chief Justice of Zimbabwe violates
applicants right of access to a court of law established by law and
applicants right to protection of the law in accordance with section
69(4) and section 56(1) of the Constitution 2013 as amended.
6.
The second respondent, in any event, can no longer be a judge of the
Constitutional Court for more than 15 years in violation of section
186(1) of the Constitution 2013 as amended.
7.
ln the alternative, section 14 of the Constitution of Zimbabwe
Amendment (No.2) Act, 2021 (No.2 of 2021) is invalid for violating
section 56(3) of the Constitution 2013 and is accordingly struck
down.
8.
There shall be no order as to costs."
9.
The relief set out in the first paragraph was not persisted with as
it was predicated upon a misreading of the constitutional provisions
pertaining to the appointment of a Chief Justice in Zimbabwe. The
applicants were under the mistaken belief that the first respondent,
the JSC, had the mandate to call for candidates to participate in an
interview. Section 180 of the Constitution provides that the Chief
Justice is appointed by the President after consultation with the
JSC. The relief sought in paragraphs 2, 3, 4 and 5 is the same one
being sought by the applicant in HC2128/21 save for the reference to
section 69(4) of the Constitution. The relief sought in paragraph 6
of the draft order was abandoned during argument. Also, the applicant
did not make any submissions in support of the alternative relief
being sought in paragraph 7 of the draft order.
10.
We take it that this relief seeking the declaration of invalidity in
respect of section 13 (which was incorrectly referred to as section
14) of the Constitution of Zimbabwe Amendment (No.2) Act, 2021, is
not being persisted with.
Preliminarv
issues and obiections
11.
The parties raised preliminary issues and objections. The first issue
pertained to the recusation of the judges sitting in this matter. We
dismissed the application and advised that the full reasons would be
contained in the final judgment. Brief reasons were given in the ex
tempore
judgment that we delivered on 15 May 2021.
12.
Before dealing with the substance of the matter it is important to
advert to two issues. These issues arise from the submissions made on
behalf of the respondents by the legal practitioners representing
them as well as from the affidavit of the Attorney-General.
13.
The first one is the suggestion that judges are employees of the JSC,
the 19th respondent in HC2128/21 and 1st respondent in HC2166/21.
That is a misapprehension of the constitutional position. Judges are
not employees but are constitutional appointees. They are appointed
by the President in terms of the Constitution. The second point is
the reference to the High Court as an inferior court. That, too, is a
misapprehension. The High Court, under both the old constitutions and
the current Constitution, is a superior court. These are fundamentals
that the court expects every legal practitioner to be aware of, hence
the need to highlight them herein.
Application
for Recusal
14.
The application on behalf of the 2nd to 19th respondents pertained
only to ZHOU J. As already noted, the 2nd to 18th respondents have
not opposed the applications. The grounds advanced are that the judge
is conflicted in that he was a Commissioner of the JSC for a period
of 6 years and, secondly, that he participated in the interviews for
the selection of Constitutional Court judges which were held in
September 2020.
15.
There was also the submission that the entire High Court bench, or,
alternatively, the judges who constitute the panel in
casu
would be biased.
16.
An application for the recusal of a member of a court or tribunal
based on interest has its foundations in the principle of natural
justice known as nemo
judex in sua causa.
The test for bias is an objective one. Applicant must show a
reasonable possibility of bias. ln the case of Bernert
v Absa Bank Ltd
2011 (3) SALR 92 the Constitutional Court of South Africa held that
in the context of an allegation of judicial bias the "double
requirement of reasonableness"
must be satisfied, that both the person who apprehends bias and the
apprehension itself must be reasonable. When one considers that there
is a presumption of impartiality, the need for genuine evidence or
facts upon which the allegations of bias are founded is enjoined.
17.
On the other hand, it is understood that an application for recusal
of a judge necessarily places the party making it, particularly the
legal practitioner, in an unenviable position. For this reason,
courts must not be over-sensitive to such an application being made
for their recusal as the rules of natural justice are an important
feature of the right to a fair hearing.
18.
ZHOU J having left the JSC in February 2020, a period of about 15
months has passed. The matters in this case do not arise from what
happened up to mid-February 2020. Mr
Chinake
referred to a resolution by which the deponent to the 19th
respondent's affidavit was authorized to act. He submitted that the
resolution was made during the period prior to February 2020, and
that some of the applicants had challenged the authority of the
Secretary of the JSC.
19.
The resolution speaks for itself and no evidence outside it or
pertaining to how it came into existence was debated in this case.
The challenge pertained to whether the Secretary had been authorized
by the JSC to apply for its joinder and to defend the applications.
No interest arising out of previous membership of the JSC has been
shown which would suggest a reasonable possibility of bias.
20.
The issue of the interviews for appointment to the Constitutional
Court does not arise in this case. The provisions which are the
subject matter of these applications introduce a new regime for
appointment of sitting judges to the Constitutional Court and Supreme
Court. No interest can be imputed arising out of the interviews which
would have a bearing on the present applications.
21.
The move for the recusation of the entire panel of judges was
predicted upon two grounds as advanced by Mr.
Magwaliba
for the first respondent and the Attorney General. The first ground
was that the amendments which were introduced by section 186 of the
Constitution of Zimbabwe Amendment (No. 2) Act, 2021 disadvantage
High Court judges because their retirement age limit was not extended
to 75 years. The submission was that the High Court should not
therefore hear the instant applications. This startling submission
which was directed at all the High Court judges, including those who
are not on this, panel, assumes that extension of working age to 75
years is a benefit.
That
is a misapprehension not based on an interview of any of the High
Court judges.
22.
The additional ground was that the judges sitting in this matter were
constituted by the Judge President who is a commissioner of the
Judicial Service Commission, and would be conflicted. The allocation
of cases to judges is an administrative function which judges have no
control over. The involvement of the office of the Judge President is
purely in the discharge of his administrative function. The
insinuation by Mr.
Magwaliba
that the judges may have been picked for some other improper purpose
in this matter is not based on evidence and is a reckless submission
by a legal practitioner who is an officer of this court.
23.
The suggestion that the panel of judges was biased because they
truncated the deadline for filing papers is unsound. The dates were
discussed and agreed upon having regard to the basis of the urgency,
which was that the second respondent wa involvement s turning 70
years old on 15 May 2021. The court has inherent power to control its
processes and procedures.
24.
Secondly, the dates were established with the and consent of those
who instructed Mr.Magwaliba.
The directions issued in respect of the filing of papers could
therefore not be evidence of bias or an interest in the matter as
suggested.
For
these reasons, we dismissed the application for recusal of the
judges.
Urgency
25.
The respondents revisited their objection that the matters were not
urgent and consented to the matters being dealt with on an urgent
basis. Accordingly, we relate to the matters on an urgent basis. Mr
Chinake
advised that his clients were abandoning the points in
limine
based on the grounds that the case had become moot and that the form
used in the court application rendered the application invalid. He,
however, persisted with the objections pertaining to misjoinder of
the 2nd to 18th respondents and jurisdiction of this court. The first
respondent persisted with all the objections in
limine
except the one pertaining to the urgency of the matter. These
objections therefore have to be considered.
The
Jurisdiction of this Court
26.
The objection to the jurisdiction of this court dealing with the
matter was not argued notwithstanding the indication that it was
being persisted with. Mr.
Chinake
accepted that this court does have the jurisdiction to grant a
declaratur, in terms of section 14 of the High Court Act [Chapter
7:06]. He, however, made two points. The first one, namely, that any
order that this court makes remains not operational until it is
confirmed by the Constitutional Court is incorrect. Only the orders
referred to in section 175(1) of the Constitution become effective
after confirmation by the Constitutional Court.
27.
The second submission was that this court has no authority to appoint
judges or decide on the hierarchy of the courts. However, this
application is not concerned with the appointment of judges or the
setting of the hierarchy of the courts. These are matters which are
contained in the Constitution. Both points are in any event
irrelevant to the issue of jurisdiction which had been raised.
28.
The objections set out in paragraphs 17.1 and 17.2 of the opposing
affidavit of the first respondent in HC2166/21 were not persisted
with in argument. These objections were that this court has no
jurisdiction to grant consequential relief and that such
consequential relief would be in violation of section 167(3) of the
Constitution. However, as has been pointed out above, notwithstanding
that in the draft order being sought the relief is presented as if it
is consequential relief what is being sought is in fact and substance
a declaratur.
The
raising of the point in
limine
that the court has no jurisdiction is misconceived. The objection is
therefore dismissed.
The
Form used in the Court Application
29.
The respondents objection is that the court application filed on
behalf of the applicant is not in Form 29, as is required by Rule 230
of the High Court Rules 1971. The respondents point out that the form
filed does not alert the respondents to their procedural rights, such
as the consequences of any failure to oppose the application. The
only missing portion of Form 29 is the one that warns the respondents
that if they fail to file their opposing papers within the dies
induciae
then the matter would be dealt with as an unopposed application. In
all the other respects the Form complies with the requirements of
Form 29. The dies
induciae
are not contained in the Form 29 itself but are stated in Rule 232.
The
failure to state the period of ten days cannot therefore be a failure
to comply with Form 29.
30.
The other requirements of Form 29 like the need to file a notice of
opposition and opposing affidavit, the need to serve opposing papers,
and the entitlement to attach annexures to the opposing affidavits,
are stated. Given that this application was filed under a certificate
of urgency and with truncated periods for filing papers, and would be
subject to the directions to be issued by the judges who would be
seized with the case, we do not believe that it would have been up to
the applicant to warn the respondents of the consequences of a
failure to file opposing papers within the proposed dies
induciae
which were, after all, proposed by the applicants.
31.
These would be subject to whatever directions that the court would
give. These directions were given with the consent of all the
parties. No prejudice was occasioned by the failure to state the
consequences of a failure to file the opposing affidavit within the
period proposed. Those who intended to oppose the applications did
file their opposing papers in accordance with the directions issued.
32.
We take note of, and draw attention to, the provisions of section
85(3)(c) of the Constitution 2013, which state that: “the
court, while observing the rules of natural justice, is not
unreasonably restricted by procedural technicalities."
Given that all the parties had the opportunity, by consent, to file
the opposing and answering affidavits and heads of argument, the
objection pertaining to the form used cannot be sustained having
regard to the important constitutional questions which arise from the
papers.
For
these reasons we dismiss the objection.
No
Leave Sought to Sue Sitting Judqes
33.
The respondents rely on Rule 18 of the High Court Rules, RGN
1047/1971 for the objection that the failure to obtain the leave of
the court to sue the judges renders the proceedings fatally
defective. That rule provides 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."
34.
A document which initiates application proceedings is not "civil
process"
save for the purposes of Order 5 Rule 1.That is the reason why in
terms of Rule 18 leave to sue out process is sought by way of court
application. lf a court application was “process"
there would be the absurdity that one would then require the leave of
court to institute the court application provided for in Rule 18
since the affected judge would have to be cited in that application.
Rule 18 falls under Order 3 which deals with summons matters. In
Order 32 which deals with applications there is no provision which is
similar to Rule 18.
So
clearly Rule 18 is not of general application to all proceedings
irrespective of how they are instituted.
35.
Further, the applications in
casu
were made in terms of section 85 of the Constitution 2013. There is
no requirement for such leave to be granted in an application made in
terms of that section. Further and, in any event, 2nd to 18th
respondents are cited in their official capacities. They have not
filed opposing papers challenging their citation without leave.
ln
any case, even if they had done so and the court had found that such
leave was required, the effect of that finding would not have been to
nullify the entire proceedings.
The
Locus Standi of the Applicants
36.
The objection taken by Mr
Magwaliba
for the 1st respondent it HC2128/21 and 3rd respondent in HC2166121
is that the applicants have not shown a legal interest which would be
or has been interfered with or a constitutional right which has been
or would be infringed. The applicants in both applications allege
violation of their fundamental rights as well as violation of the
Constitution if the 2nd
to 18th respondents are to continue to occupy the office of judge
after attaining the age of seventy years.
37.
The Constitution of Zimbabwe widened the scope of locus
standi
in respect of matters pertaining to infringement of fundamental
rights, see section 85(1) of the Constitution 2013. The applicants
are alleging violation of their fundamental rights. This gives them
the locus
standi
to approach the court for relief. A restrictive interpretation of
locus
standi
in respect of alleged violations of the Constitutional rights was
rejected in the case of Mawarire
v Mugabe N.O. & Ors
13-CC-001 at para 22 and 2013 (1) ZLR 469 (CC) and 477D-E where the
Court said:
“Certainly,
this court does not expect to appear before it only those who are
dripping with the blood of the actual infringement of their rights or
those who are shivering incoherently with the fear of the impending
threat which has actually engulfed them. This court will entertain
even those who calmly perceive a looming infringement and issue a
declaration or appropriate order to stave the threat..”
38.
ln the Mawarire
case the applicant alleged that his right to protection of the law in
terms of section 18(1) of the old Constitution of Zimbabwe had been,
was being or was likely to continue to be violated by a failure to
fix a date for the holding of elections. ln the instant applications
the applicants allege violation of section 56(1) and section 69(3) of
the Constitution 2013. In any event, ensuring compliance with the
provisions of the Constitution is not only an entitlement but an
obligation of every citizen of Zimbabwe. This gives them the locus
standi
to approach the court for enforcement of the constitutional rights.
Whether the violations will be established is a matter for argument
on the merits.
In
the premises, the objection to the locus
standi
of the applicants to approach the court is unfounded and must fail.
Misjoinder
of the 2nd to 18th respondents in HC2128/21 and their Citation
39.
The 1st and 19th Respondents took the point that there was misjoinder
of the 2nd to 18th respondents. In the case of and Zimbabwe
Teachers Association & Ors v Minister of Education
1990 (2) ZLR 48, it was held at 52F-53E that a party is entitled to
participate in a suit if it has a direct and substantial interest in
the subject-matter and outcome of the application. What is required
is a legal interest, not a financial interest which is only an
indirect interest in the litigation.
40.
In this case the respondents are the persons who held or occupied the
offices of judges of the Constitutional Court and Supreme Court. The
question of whether they should retire at the age of seventy years or
they have an election to have their stay in office extended affects
them directly. In fact, the second respondent reached seventy years
old on 15 May 2021, and the extension of his term of office beyond
the age of seventy is a question to be determined in the instant
matters.
41.
Whether the 15th, 16th and 17th are affected by the order if granted
is a matter that pertains to the merits of the case. The fact is that
they are cited and relief is being sought against them as well.
In
any event, the 1st and 19th respondents cannot plead a case on behalf
of parties who have not defended the suit.
42
After all, Rule 87(1) of the High Court Rules RGN 1047/1971, provides
that the misjoinder or non-joinder of a party does not defeat the
cause as long as the issues before the Court can be determined in
respect of the parties before it. It goes further to state that the
court may in any cause or matter, determine the issues or questions
in dispute so far as they affect the rights and interests of the
persons who are parties to the cause or matter.
The
objection is dismissed.
Non-joinder
of Parliament and the President
43.
The objection is that Parliament, the Speaker of the National
Assembly, the President of Senate and the President of the Republic
of Zimbabwe ought to have been cited in these proceedings. The basis
of this objection, as appears from paras 18.1-18.4 of the 19th
Respondent's opposing affidavit in HC2128/21, is that what is being
sought to be impugned is the Constitution of Zimbabwe Amendment (No.
2) Act, 2021. However, what is involved is the interpretation of that
Act and the Constitution and the constitutionality of some of the
provisions of the Amendment Act. These are matters that fall within
the domain of the court.
44.
lnterpretation of the law is the primary duty of the Court. Neither
Parliament nor the President has a role in that process. Once the
Legislature makes a law it would have discharged its mandate. It
cannot be called upon to appear before a court to answer to questions
pertaining to the alleged unconstitutionality of the law or the
meaning or effect of that law, unless what is being raised is whether
it has complied with the constitutional procedures in making the law.
45.
In relation to the President of the Republic, there is the submission
that he has written the letter of 11 May 2021 in terms of which the
second respondent's term of office was extended. However, the cause
of action in both applications is not founded upon the letter of 11
May 2021.
Accordingly,
this objection is without merit and is dismissed.
The
Alleged Absence of a Cause of Action
46.
This objection is taken by the third respondent in HC2166/21, in
paras 7-11 of the heads of argument. Although it is raised as an
objection in
limine
the submissions show that it is an argument on the merits of the
matter. The point being made is that the applicants in HC2166/21
failed to establish their entitlement to the right of access to
courts as enshrined in section 69(3) of the Constitution 2013 and how
the continued occupation of the office of Chief Justice by the second
respondent violates the applicants rights as protected by section 69
and section 56 of the Constitution 2013.
This
objection is therefore dismissed.
Whether
the matter has become moot
47.
The 1st respondent in HC2128/21 and the 3rd respondent in HC2166/21
contend that the dispute between the applicants and 2nd
respondent has become moot by reason of the 1st
respondent's term having been extended prior to the hearing of the
matter. It is common cause that a letter was written on behalf of the
President on 11 May 2021, the same day that the first application was
instituted. The letter was produced as an annexure to the opposing
papers for the JSC. In terms of the letter the President agreed to
extend the 2nd respondent's continued stay in office as Chief Justice
with effect from 16 May 2021.
48.
The doctrine of mootness is one of the prudential considerations on
the basis of which on public policy considerations a court may
decline to exercise its jurisdiction to determine a matter which has
come before it. This would arise where there is no remaining triable
issue. A case is moot and therefore not justiciable if it no longer
raises an extant or live dispute, harm, controversy or threat of
prejudice to the applicant, see S
v Dlamini; S v Dladla; S v Joubert; S v Schietekat 1999
(4) SA 623.
49.
ln the case of National
Coalition for Gay and Lesbian Equality and Anor v Minister of Justice
and Ors
1999
(1) SA 5 the Court stated that a matter ceases to be justiciable on
the ground of mootness if it “no longer presents an existing or
live controversy". The doctrine is applicable where a matter is
brought to court too late when the issues to be determined have been
resolved or, as is sometimes said, when the horse has already bolted
out of the stable. See, for example, DeFunis
v Odegaard (1974)
415 US 312 a case in which the applicant challenged the decision of
the Admission Committee of the University of Washington Law School to
deny him admission. He alleged that he had been denied enrolment on
grounds of racism. By the time that the matter got to the Supreme
Court the Law School had admitted the applicant as a student and he
was now registered for his final quarter in the Law School. The
Supreme Court of the US held that it could not consider the
substantive constitutional issues raised because the controversy had
been resolved.
50.
The jurisprudential rationale for the doctrine, as explained in the
case of JT
Publishing (Pty) Ltd and Anor v Minister of Safety and Security and
Ors,
1997 (3) SA 514 Courts should avoid deciding points that are
"abstract,
academic or hypothetical".
51.
In
casu
the dispute remains alive notwithstanding the writing of the letter
of 11 May 2021.The issue of whether section 186 of the Constitution
2013 has the effect of extending the tenure of office of the 2nd
to 18th respondents as judges beyond the age of seventy years remains
alive. The question of the retirement age for the 2nd respondent and
the other judges of the Constitutional Court and Supreme Court was
not resolved by that letter.
For
these reasons the matters raised are not abstract; they are not moot.
The objection must therefore fail.
The
Applicants Objections in Limine
52.
The applicants in their answering papers also raised objections in
limine
to the respondents papers. The authority of Walter Chikwana, the
Secretary of the JSC, to motivate the joinder of the 19th respondent
was questioned. The application for joinder was not made on affidavit
but was made orally at the case management conference. lt was not
based on any affidavit. The joinder was granted with the consent of
the applicants.
Therefore,
the objection to the joinder cannot stand.
53.
There was also the question as to whether the JSC had authorized the
deponent to the affidavit to defend the matter or participate in it,
it being clear from the resolution attached that the authority given
is merely "to
sign documents on behalf of the JSC in litigation matters".
It is not in every case that the court would insist on a resolution
to authorize or defend proceedings. Where a juristic entity has
brought itself before the court, particularly where it is represented
by a legal practitioner, it is up to the person alleging want of
authority to produce evidence to support the allegations.
54.
ln the case of Madzivire
& Others v Zvarivadza & Others
SC10-06; 2006
(1)
ZLR 514 the dispute involved directors who were competing to control
a company, hence the issue of the authority of the company to
participate in the proceedings had to be proved after being put in
issue. In the present cases there is no evidence led to suggest that
the legal practitioner who appeared had no authority to represent the
JSC to apply for its joinder or to file opposing papers on its
behalf.
Accordingly,
the objection is dismissed.
55.
The other points taken are that the Attorney-General has no authority
to depose to an affidavit on behalf of the 1st respondent in
HC2128/21 and that, in any event his opposing affidavits in both
cases were not properly commissioned and are therefore invalid. The
Attorney-General is the principal legal advisor to the Government and
has the authority to represent the government in civil and
constitutional proceedings. If he has knowledge of the facts to which
he deposes he would not be disqualified from deposing to an affidavit
on behalf of the Government.
56.
In this case he explains why the 1st respondent was unable to depose
to the affidavit himself by reason of being unavailable. He further
explains that his defence is largely based on legal issues which
would be within his domain.
We
therefore do not believe that he is disqualified from deposing to the
affidavit.
57.
The second ground of objection is that the affidavits deposed to by
the Attorney-General were sworn to before the very same legal
practitioner, Ms
F Chimbaru,
who is appearing in these proceedings. Ordinarily she would be
disqualified from commissioning the affidavits by reason of her
interest in the matter given her involvement. No acceptable reason
was given as to why no other commissioner of oaths could commission
the documents. Be that as it may, given the urgency involved in these
matters, the court is prepared to turn a blind eye to these
deficiencies in order to deal with the substance of the matter.
Accordingly,
the objections in respect of the affidavits are dismissed.
The
Dispute on the Merits
58.
This dispute stands to be resolved on the effect of section 186 of
the Constitution of Zimbabwe as introduced by the Constitution of
Zimbabwe Amendment (No.2) Act, 2021 in light of the provisions of
section 328 of the Constitution 2013.
59.
The new section 186 provides -
“186
Tenure of office of judge
(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 70
years, when they must retire unless, before they attain that age,
they elect to continue in office for an additional 5 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 15 years, but —
(a)
they must retire earlier if they reach the age of 70 years unless,
before they attain that age, they elect to continue in office for an
additional 5 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 the mental and physical
fitness of the judge 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 70 years, when they
must retire unless, before they attain that age, they elect to
continue in office for an additional 5 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 the mental and physical
fitness of the judge 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, Deputy Chief Justice,
judges of the Constitutional Court and judges of the Supreme Court.
(5)
Judges of the High Court and any other judges hold office from the
date of their assumption of office until they reach the age of 70
years, when they must retire.
(6)
A person may be appointed as a judge of the Supreme Court, the High
Court or any other court for a fixed term, but if a person is so
appointed, other than in an acting capacity, he or she ceases to be a
judge on reaching the age of 75 years (in the case of a judge of the
Supreme Court) or 70 years (in the case of a judge of the High Court
or any other court) even if the term of his or her appointment has
not expired.
(7)
Even though a judge has resigned or reached the age of retirement or,
in the case of a judge of the Constitutional Court, 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 proceedings commenced
before him or her while he or she was a judge.
(8)
A judge may resign from his or her office at any time by written
notice to the President given through the Judicial Service
Commission.
(9)
The office of a judge must not be abolished during his or her tenure
of office.”
60.
Its effect is to extend the retirement age of the Chief Justice,
deputy Chief Justice and judges of the Constitutional and Supreme
Court as will be dealt with in due course.
61.
Section 328 of the Constitution 2013 reads as follows:
“(1)
In this section —
'Constitutional
Bill'
means
a Bill that seeks to amend this Constitution;
'term-limit
provision'
means
a provision of this Constitution which limits the length of time that
a person may hold or occupy a public office.
(2)
An Act of Parliament that amends this Constitution must do so in
express terms.
(3)
A Constitutional Bill may not be presented in the Senate or the
National Assembly in terms of section 131 unless the Speaker has
given at least 90 days notice in the Gazette of the precise terms of
the Bill.
(4)
Immediately after the Speaker has given notice of a Constitutional
Bill in terms of subsection (3), Parliament must invite members of
the public to express their views on the proposed Bill in public
meetings and through written submissions, and must convene meetings
and provide facilities to enable the public to do so.
(5)
A Constitutional Bill must be passed, at its last reading in the
National Assembly and the Senate, by the affirmative votes of two
thirds of the membership of each House.
(6)
Where a Constitutional Bill seeks to amend any provision of Chapter 4
or Chapter 16 —
(a)
within 3 months after it has been passed by the National Assembly and
the Senate in accordance with subsection (5), it must be submitted to
a national referendum; and
(b)
if it is approved by a majority of the voters voting at the
referendum, the Speaker of the National Assembly must cause it to be
submitted without delay to the President, who must assent to and sign
it forthwith.
(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.
(8)
Subsections (6) and (7) must not both be amended in the same
Constitutional Bill nor may amendments to both those subsections be
put to the people in the same referendum.
(9)
This section may be amended only by following the procedures set out
in subsections (3), (4), (5) and (6) as if this section were
contained in Chapter 4.
(10)
When a Constitutional Bill is presented to the President for assent
and signature, it must be accompanied by —
(a)
a certificate from the Speaker that at its final vote in the National
Assembly the Bill received the affirmative votes of at least
two-thirds of the membership of the Assembly; and
(b)
a certificate from the President of the Senate that at its final vote
in the Senate the Bill received the affirmative votes of at least two
thirds of the membership of the Senate.”
62.
We draw particular attention to the provisions of section 328(7)
because this matter revolves around its relationship with section
186, and the effect of that relationship on the tenure of office of
the Honourable Justice Luke Malaba and the other judges who are cited
as respondents in Case No. HC2128/21.
The
Applicants and Respondents Contentions
63.
The applicants case is summarized in paras 61-65 of the founding
affidavit in HC2128/21 and paragraphs 17-21 of the founding affidavit
in HC2166/21. It is that the second respondent and the other persons
cited who occupy fie offices of judges of the Constitutional Court
and Supreme Court cannot remain in office beyond the age of 70 years
notwithstanding the provisions of section 186 of the Constitution as
substituted by the Constitution of Zimbabwe Amendment (No.2) Act,
2021. The essence of the respondents case is that section 186 did not
affect the term-limit or tenure of the judges of the Constitutional
and Supreme Courts, and is therefore not affected by the provisions
of section 328(7) of the Constitution.
64.
ln other words, what has to be decided in
casu
is whether the 2nd
to 18th
respondents retire upon reaching the age of 70 years or are entitled
to elect to continue in office for an additional five years until
they reach the age of 75 years. This issue can only be resolved by
interpretation of sections 186 and 328(7) of the Constitution. It is
important to give an overview of the principles of interpretation
which apply to constitutional provisions in general insofar as these
have a bearing on how these two sections should be understood.
The
Approach to Constitutional Interpretation
65.
According to Iain Currie & Johan de Waal 'The
Bill of Rights Handbook'
6th ed. Pg133,
"Constitutional
interpretation is the process of determining the meaning of a
constitutional provision."
66.
Thus, interpreting a constitution entails giving "meaning"
which we understand in its wide sense, to the provisions of a
constitution. An interpretation that does not give effect to the
purpose of the provision does not give meaning to it; see Judicial
Service Commission v Zibani & Others 17-SC-068;-2017
(2)
ZLR 114. The textual provisions of the constitution under
consideration are the starting point but they should not be
considered and interpreted piecemeal or in isolation.
We
therefore do not agree with the submission by Mr
Magwaliba
that
the cases of Natal
Joint Municipal Pension Fund v Enduhreni Municipality
2012 (4) SA 593 and Zambezi
Gas (Pvt) Ltd v NR Barber (Pvt) Ltd & Anor
20-SC-003 introduce a new and different paradigm to the
interpretation of constitutional provisions.
67.
The textual provisions must be construed contextually having regard
to the constitution as a whole; see Matatiele
Municipality v President of the Republic of South Aftica
2007
(6) SA 477.
68.
The preferred approach is the 'generous' and 'purposive'
interpretation that gives expression to the underlying values of the
Constitution, as was held in S
v Makwanyane 1995
(3) SA 391.
69.
Section 46(1) of the Constitution 2013 provides as follows:
“(1)
When interpreting this Chapter (read 'Constitution'), a court,
tribunal, forum or body —
(a)
must give full effect to the rights and freedoms enshrined in this
Chapter;
(b)
must promote the values and principles that underlie a democratic
society based on openness, justice, human dignity, equality and
freedom and in particular, the values and principles set out in
section three;
(c)
must take into account international law and all treaties and
conventions to which Zimbabwe is a party
(d)
must pay due regard to all the provisions of this Constitution, in
particular the principles and objectives set out in Chapter 2; and
(e)
may consider relevant foreign law;”
70.
The starting point is to appreciate that in Zimbabwe the Constitution
is the supreme law. This fundamental tenet of democracy is enshrined
as a rule and as one of the values and principles upon which the
nation of Zimbabwe is founded. Section 2 of the Constitution 2013
provides as follows:
“2.
Supremacy of Constitution
(1)
This Constitution is the supreme law of Zimbabwe and any law,
practice, custom or conduct inconsistent with it is invalid to the
extent of the inconsistency.
(2)
The obligations imposed by this Constitution are binding on every
person, natural or juristic, including the State and all executive,
legislative and judicial institutions and agencies of government at
every level, and must be fulfilled by them.”
71.
Section 3 of the Constitution 2013 states the following, among other
things:
“3.
Founding values and principles
(1)
Zimbabwe is founded on respect for the following values and
principles —
(a)
Supremacy of the Constitution;
(b)
the rule of law;
(c)
Fundamental human rights and freedoms;
(d)…;
(e)…;
(f)…;
(g)..;
(h)
good governance;
(i)…;
(2)
The principles of good governance, which bind the State and all
institutions and agencies of government at every level, include -
(a)…;
(b)…;
(c)…;
(d)…;
(e)
Observance of the principle of separation of powers;
(f)
Respect for the people of Zimbabwe, from whom the authority to govern
is derived
(g)
transparency, justice, accountability and responsiveness;
(h)…;”
72.
See also section 331 of the Constitution 2013, which provides as
follows:
“Section
46 applies, with any necessary changes, to the interpretation of this
Constitution apart from Chapter 4.”
73.
The essence of the constitutional supremacy doctrine, as distinct
from parliamentary sovereignty, is that the Constitution is the
litmus test, the ultimate measure, by which the validity of any law,
practice, custom or conduct is assessed. This aspect distinguishes
constitutional supremacy from parliamentary supremacy or
parliamentary sovereignty. Where the latter system obtains,
parliament is supreme, and any law that it passes cannot have its
content questioned for validity. Zimbabwe is a constitutional
democracy in which the constitution is supreme, and not a
parliamentary democracy in which parliament is supreme; see Judicial
Service Commission v Zibani and Others (supra).
74.
The principle of separation of powers which is explicitly provided
for in section 3 and guaranteed by the architecture of our
Constitution has in it that among the three arms of the State, the
judiciary has the primary duty to interpret the law; see In
Re: Prosecutor-General of Zimbabwe on his Constitutional lndependence
and Protection from Direction and Control,
17-CC-013 at para 21-23 and 17(1) ZLR 107.Therefore, the exercise of
determining what section 186 of the Constitution means in light of
the provisions of section 328(7) falls squarely within the mandate of
the courts.
75.
The principles which are encapsulated in the principle of good
governance demand a new and different way of doing things from what
may have been done in the past, hence the special mention of
transparency, justice, accountability and responsiveness. This is the
context in which the entrenchment of section 328(7) of the
Constitution must be understood. The provision's purpose is, among
the other important considerations, to ensure that a person who holds
or occupies public office does so for a limited time, to prevent
turning persons into institutions thereby compromising on the
precepts enjoined in section 3 of the Constitution.
76.
It is also to ensure that a person who occupies or holds public
office does not influence changes in the law in order to entrench his
or her occupation of the public office by extending the length of
time that he or she remains in that office.
77.
With particular reference to judicial officers, entrenchment of
provisions relating to terms of office for incumbents ensures
confidence in the judiciary by dispelling any suspicion that favours
are being extended to them contrary to the provisions of the
Constitution that would undermine the independence of the judiciary.
As was held in the case of Justice
Alliance of South Africa v President of the Republic of South Africa
& Others:
"ln
approaching this question it must be borne in mind that the extension
of a term of office, particularly one conferred by the Executive or
Parliament, may be seen as a benefit. The judge or judges upon whom
the benefit is conferred may be seen as favoured by it.…The power
of extension in section 176(1) must therefore, on general principle,
be construed so far as is possible to minimize 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."
78.
Public confidence in the independence of the judiciary would be
severely undermined if there was a belief or even suspicion that the
judiciary or members thereof are, like nocturnal spooks acting under
cover of darkness, knocking on the doors of the Executive and
Legislative arms of government begging or lobbying for extension of
their terms of office. This is the reason why there is need for
certainty regarding the tenure of office of judicial officers in
order to dispel any thinking that if they behave in a certain way
they might get the benefit of favourable constitutional amendments.
In order to guard against subtraction from the founding values and
principles, including the independence of the judiciary, the court
must embrace substantive reasoning, an interpretive model which gives
substance to those values and principles, and eschew legal sophistry
which would result in narrowing down the meaning of these values.
79.
Further, the entrenchment ensures that if there is any change in the
Constitution the effect of which is to extend the length of time that
a person may hold or occupy public office such a change in the in law
must be subjected to the rigorous processes in section 328, which
include a referendum.
80.
We point out that section 328 does not stop the legislature from
amending the Constitution by extending term limits in general. If the
changes in the Constitution do not have the effect of extending the
length of time that the incumbent may hold office they do not have to
go through the rigorous processes required by section 328. However,
if the effect of such amendments is to extend the length of time that
a person holds or occupies public office then they must be subjected
to those entrenched processes.
81.
Section 328 has not been repealed by the Constitutional Amendment. It
must therefore be given effect.
Interpretation
of Section 186 and 328(7)
82.
It is an established principle that sections of the constitution must
not be read in isolation but must be read together and in the context
of the whole text in order to give effect to the purpose and
objective of the Constitution.
See
Tsvangirai M v Mugabe R, Z.E.C & 2 ORS 17-CC-020-2017 per MALABA
DCJ at para 39-40 (2) ZLR 1 (CC) at 9C.
83.
In this case, the two sections are not in conflict but must be read
together and with the constitution as a whole. Section 328 which
deals with amendment of the Constitution entrenches certain
provisions. This entrenchment is by requiring, in addition to the
usual procedure for passing an amendment to the Constitution, that
such amendments be submitted to a referendum and get approval from a
majority of the voters voting at the referendum.
84.
One such provision which is entrenched is section 328(7), which, as
recited above, 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.”
85.
The Constitution of Zimbabwe Amendment (No.2) Act, 2021 amends
section 186 of the Constitution through its section 13. Section 332
of the Constitution 2013 defines the term 'amend'
to include "vary,
alter, modify, add to, delete or adapt."
86.
In this instance the existing section 186 was repealed and
substituted with a new section 186. This is an amendment. In order to
determine whether or not the amendment is one that falls within the
ambit of section 328(7) two requirements must be satisfied, namely –
(a)
it must be an amendment to a term limit; and
(b)
it must have the
effect
of extending the length of time that a person may hold or occupy a
public office.
'Effect'
simply means result, consequence or impact, irrespective of the
expressed purpose of the amendment.
Once
it satisfies these two requirements then such an amendment is
excluded from applying to "any person who held or occupied that
office, or an equivalent office, at any time before the amendment."
87.
The reference to an "equivalent
office"
is no doubt meant to deal with a situation where an amendment might
seek to rename or reconfigure what is essentially the same office in
order to escape the consequences of section 128(7), thereby extending
a person's stay in office.
88.
There can be no question that judges occupy public office. There was
debate as to whether section 186 is a term-limit provision which has
the effect of extending the length of time that the second respondent
and the other judges of the Constitutional Court and Supreme Court
may hold or occupy office.
89.
The respondents contended that it was not a term-limit provision. The
submission was that the only term limit which is contained in section
186 is one that is contained in subsection (2), which states that
"Judges
of the Constitutional Court are appointed for a non-renewable term of
no more than fifteen years".
Their argument was that the retirement age stipulated does not limit
the term of office of the judges. This argument means that judges of
the Supreme Court and High Court have no term limit.
90.
That argument is not sustainable. Section 328(1) of the Constitution
2013 defines 'term-limit
provision'
to mean "a provision of this Constitution which limits the
length of time that a person may hold or occupy a public office".
91.
We therefore come to the conclusion that section 186 is a term limit
provision and that it has the effect of extending the length of time
that a person may hold the office of judge of the Constitutional
Court and Supreme Court. It increases the retirement age of the
judges of these courts from the original 70 to 75 years. The fact
that this extension of the tenure of office is subject to election by
the concerned judge and acceptance by the President after
consultation with the Judicial Service Commission and production of a
medical report does not change its nature as an extension of a term
limit. In respect of the judge of the Constitutional Court, the term
limit is based on two dimensions, namely;
(i)
the period of 15 years which is provided in section 186; and
(ii)
the age of the affected judge.
It
is clear that whichever of these 2 occurs first terminates the tenure
of the judge. This is what is generally referred to as a hybrid
tenure arrangement.
There
are thus three types of valid tenure arrangements in use generally
the world over:
(i)
Life limits (when one dies);
(ii)
Age limits (when one reaches a specified retirement age); and
(iii)
Fixed term Iimits (when a specified period of service is reached).
92.
These three tenure arrangements are contained in section 186 of the
Constitution of Zimbabwe. Tenure has to do with term of office; term
of office has to do with time. Both fixed term (fixed time), and
age-based term (age-based time), have to do with time. Time is the
underlying factor in both of them.
Therefore,
the inescapable conclusion is that varying retirement age is varying
term limits.
93.
ln respect of Supreme Court judges, the tenure of office is defined
by age only. Thus, for instance, a Constitutional Court judge who is
aged 70 years at the time of his or her appointment has his or her
term limited to only five years. That term limit is defined by his or
her age. He or she must retire upon turning seventy-five years after
serving for only five years. On the other hand, a judge of the same
court who is fifty years old at the time of his or her appointment
has his or her term defined by the period of fifteen years. The judge
retires from the Constitutional Court at the age of sixty-five years.
94.
On the other hand, a judge of the Supreme Court under the new
amendment retires at the age of seventy-five years irrespective of
how many years he has served on that bench.
95.
That section 186 is a term limit provision, and that it is concerned
with extending the length of time that judges of the Constitutional
Court and the Supreme Court hold or occupy public office, is also
evident from the provisions of section 186(4). This provision
explicitly refers to section 328(7). This reference to section 328(7)
would be rendered superfluous or nugatory if, as suggested by the
respondents, it is found that section 186 is not a term-limit
provision.
96.
The respondents have not suggested why the legislature would engage
in a superfluous exercise, especially in light of the presumption
against superfluity in the interpretation of statutes.
Also,
in the affidavits filed in this court, the respondents referred to
its effect as extending the term of office.
See
paras 25.4(b)
and (c) of the 19th respondent's opposing Affidavit in HC2128/21.
97.
The submission made on behalf of the respondents reads the reference
to the fifteen years in isolation from the rest of subsection (2) of
section 186. That is the approach to interpretation which must be
discarded. The case Justice
Alliance of South Africa v President of the Republic of South Africa
& Others
which has been referred to by both the applicants and respondents
also confirms that age can, and does, indeed define and can be used
to extend a term of office, as has happened following the enactment
of section 186:
"lt
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....
Age is an indifferent criterion that may be applied in extending the
term of office of a Constitutional Court Judge.”
[Emphasis added]
98.
Section 186(4) and section 328(7) can be read together. In our
conclusion, section 186(4) does not apply to the person of the second
respondent and the other persons who were judges of the
Constitutional Court prior to the amendment. It also does not apply
to the persons who were judges of the Supreme Court. This is because
these are persons who fall within the ambit of section 328(7) in that
they held or occupied the public office prior to and at the time if
the amendment of the Constitution.
99.
Consistent with the hallowed principle of interpretation which avoids
an interpretation which results in a conflict in constitutional
provisions, we come to the conclusion that section 186(4) does not
apply to the judges of the Constitutional Court and Supreme court who
held office before the amendment. There is no confusion which results
from the wording of section 186(4). It says that the section shall
apply to the continuation in office of the Chief Justice, Deputy
Chief Justice, judges of the Constitutional Court and judges of the
Supreme Court. This means it would apply to the continuation of the
mentioned public officer other than those who were judges before the
amendment.
100.
The provision mentions offices rather than the persons occupying
them, section 186(4) must therefore be understood as applicable to
persons who are appointed to the named offices subsequent to the
amendment. It does not mention 'persons'
and does not state that the persons who were in office prior to the
amendment would benefit from it.
101.
If it did so this would put it in conflict with the express
provisions of section 328(4) and its constitutionality would be in
question given that it was not submitted to a national referendum.
On
the other hand, an interpretation that excuses the persons who held
public office as judges of the Constitutional and Supreme Courts
prior to the amendment from the ambit of section 328(7) would reduce
the Constitution to a wooden iron, because any person who already
holds or occupies public office can easily cause their term of office
to be lengthened by enactment of a provision similar to section
186(4) thereby perpetuating the mischief which was meant to be
addressed by the entrenchment of section 328.
The
Status of Honourable Justice Malaba
102.
It is common cause that the Honourable Justice Malaba is the only
judge of the Constitutional Court who has turned 70. At the time that
the applications were filed, he had not turned 70. He turned 70 years
old on 15 May 2021. The applications were filed following indications
that he might or would benefit from the new section 186 of the
Constitution by having his tenure of office extended by another 5
years. The respondents in their opposing affidavits have referred to
a letter dated 11th
May 2021 by which his tenure was to be extended with effect from l6
May 2021.
103.
In view of the conclusion we have reached, Honourable, Justice Luke
Malaba ceased to be a judge of the Constitutional Court and Supreme
Court (at 0000 hours on 15 May 2021) when he turned 70 years.
Equally, he ceased to be the Chief Justice of the Republic of
Zimbabwe at that time. Nothing tums on the letter of 11 May 202l when
it was written that was the same day that the application was filed.
The letter of 11 May 202l was intended to take effect only on 16 May
2021, on which date the then incumbent would have ceased to be a
judge some twenty-four hours earlier. An absurd situation, which
neither the Executive nor the Legislature would have intended.
104.
It is common cause that the Honourable Justice Malaba is the only
judge of the Constitutional Court who has turned 70. At the time that
the applications were filed, he had not turned 70. He turned 70 years
old on 15 May 2021. The applications were filed following indications
that he might or would benefit from the new section 186 of the
Constitution by having his tenure of office extended by another 5
years. The respondents in their opposing affidavits have referred to
a letter dated 11 May 2021 by which his tenure was to be extended
with effect from l6 May 2021.
In
view of the conclusion we have reached, Honourable Justice Luke
Malaba ceased to be a judge of the Constitutional Court and Supreme
Court(at 0000 hours on 15 May 2021) when he turned 70 years. Equally,
he ceased to be the Chief Justice of the Republic of Zimbabwe at that
time.
105.
Nothing turns on the letter of 11 May 202l, when it was written that
was the same day that the application was filed. The letter of 11 May
202l was intended to take effect only on 16th May 2021, on which date
the then incumbent would have ceased to be a judge some twenty-four
hours earlier. An absurd situation, which neither the Executive nor
the Legislature would have intended, would have resulted whereby the
country would be without a Chief Justice for the period of 24 hours,
between 0000hours on l5 May 2021 and 0000 hours on 16 May 2021. There
would have been nothing to extend since he would have ceased to be a
judge and Chief Justice of Zimbabwe.
106.
Thus, any purported extension of the second respondent's occupation
of the office of judge or Chief Justice remains a nullity because
there was nothing to extend once he ceased to be a judge at the
inception of 15 May 2021. This is so whether the extension is said to
have been constituted by his election to remain
in office
or by the letter of 11 May 2021. The celebrated statement in the case
of MacFoy
v United Africa Co. Ltd
[1961]
I AER 1169 decidedly seals the effect of that letter:
''If
an act is void, then it is in law a nullity. It is not only bad, but
incurably bad. . . And every proceeding which is founded on it is
also bad and incurably bad. You cannot put something on nothing and
expect it to stay there. lt will collapse."
107.
ln the case of Muchakata v Netherburn Mine,1996 (1) ZLR 153 the
Supreme Court of Zimbabwe (Per Korsah JA) said that if an act is void
ab initio it is "void at all times and for all purposes. It does
not matter when and by whom the issue of its validity is raised;
nothing can depend on it." In making these observations, we are
mindful of the fact that the two applications were not based on the
letter of 11 May 2021. That letter was produced in opposing papers.
Our
conclusion is that the letter does not affect the conclusions which
we have reached based upon an interpretation of the constitutional
provisions considered above.
The
Position of the other Judges of the Constitutional Court and Supreme
Court
108.
The effect of the conclusion reached above is that the persons who
occupied the positions of judges of the Constitutional and Supreme
Courts prior to the amendment cannot have their term in office
extended beyond the age of 70 years based on section 186 of the
Constitution as presently worded. This is because they held or
occupied the concerned office before the amendment introduced by
section 13 of the Constitution of Zimbabwe Amendment (No.2) Act,
2021.
109.
We point out, however, that acting judges be they in the
Constitutional Court or Supreme Court are not affected by the
provisions of section 328(7) as read with section 186 of the
Constitution 2013. These include the 4th to 14th and the 18th
respondents in so far as they have been acting Constitutional Court
judges as well as the 15th, 16th and 17th Respondents in case no.
HC2l28/21 in so far as they are substantive High Court judges who
have been acting as Constitutional Court and/or Supreme Court judges.
There is no extension to the length of their term in office since
they are just acting judges.
The
Violations of the Applicants Rights
110.
The applicants in both applications allege that the continued
occupation of public office as judge and/or Chief Justice of Zimbabwe
by the second respondent would violate their fundamental rights
enshrined in section 56(1) and section 69(3) of the Constitution. The
parties accepted that the reference to section 69(4) in the draft
order in HC2166/21 was an error, the correct and intended citation
being section 69(3).
Section
56(1) provides as follows:
"All
persons are equal before the law and have the right to equal
protection and benefit of the law."
Section
69(3) provides as follows:
"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."
111.
This court is concerned with substantive equality and equal
protection and benefit of the law rather than formal equality. In the
case of Mawarire
v Mugabe N.O. & Ors supra,
the applicant alleged violation of, inter
alia,
section 18(1) of the old Constitution which provided as follows:
"Subject
to the provisions of this Constitution, every person is entitled to
the protection of the law."
The
Court came to the conclusion that the failure to perform a
constitutional duty violated the applicant's fundamental right as
protected by section 18 of the Constitution.
Section
56(1) of the Constitution 2013 is wider in its scope than section 18
of the old Constitution. It qualifies the protection of the law with
the word 'equal';
it also adds the entitlement to 'equal
benefit'
of the law which was not there in the old Constitution.
112.
We conclude that the continued occupation by the second respondent of
the offices of judge and Chief Justice after he has turned seventy
years old violates the applicants right as enshrined in section 56(1)
of the Constitution. The applicants are entitled to 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. The applicants are therefore entitled to the
declaratory relief which they seek.
113.
The second violation of fundamental rights alleged by the applicants
in Case No. HC2166/21 is of section 69(3) of the Constitution.
Para
9(a) of the affidavit of Emma Kate Drury
It
has been held that the right of access to courts is essential for
constitutional democracy and the rule of law. Road Accident Fund v
Mdeyide 2011 (2) SA 26 (CC) paras 1 and 64; De Beer N.O.v
North-Central Local Council and South-Central Local Council 2002 (1)
SA 429 (CC) para 11.
114.
ln the case of Bernstein
v Bester N.O.1996
(2) SA 751 (CC) para 105, the purpose of the right of access to
courts was explained by the Constitutional Court of South Africa as:
"to
emphasise and protect generally, but also specifically for the
protection of the individual, the separation of powers, particularly
the separation of the judiciary from the other arms of the state,..
(It) achieves this by ensuring that the courts and other fora which
settle justiciable disputes are independent and impartial. It is a
provision fundamental to the upholding of the rule of law, the
constitutional state, the 'regstaatidee' for it prevents legislatures
at whatever level, from turning themselves by acts of legerdemain
into 'courts'… By constitutionalizing the requirements of
independence and impartiality the section places the nature of the
courts or other adjudicating fora beyond debate..."
115.
We respectfully endorse the above exposition of the law. Both the
separation of powers principle and the rule of law are enshrined in
section 3 of the Constitution 2013. The essence of the rule of law is
that any person may challenge the legality of any law, conduct,
practice etc
in a separate, impartial and independent court or other forum, one
that is free from the control of the perpetrator of the illegality,
Currie & de Waal “The
Bill of Rights Handbook”
6th ed. p711.
116.
If a sitting judge can have his or her term of office extended by
amendment of the Constitution just one week before he or she is due
to retire, or judicial officers have their age limit extended
contrary to the express provisions of the Constitution which prevent
incumbents from having terms of office extended for them while they
are in office, questions will reasonably abound as to the extent to
which the Court can be independent. The intended extension of the
length of time that the persons in office as judges of the
Constitutional Court and Supreme Court, do have the effect of
compromising on the independence of the judiciary and the rule of
law. Significantly, the election to continue in office introduced by
section 186(1), (2) and (3) is not an automatic guarantee that the
judge concerned will continue in office. It is subject to acceptance
by the President. It is not guaranteed. This has the effect of
subjecting the term of office (or extension thereof) to the control
of the Executive.
117.
If any extension is to be afforded to the 2nd to 14th and the 18th
respondents then there would be violation of the applicants right as
protected by section 69(3). This is so given the conclusion that we
have reached that such extension contemplated by section 186 does not
apply to persons who were in office as judges before the amendment.
Conclusion
118.
Our conclusion is that the extension of the retirement age amounts to
extension of tenure. Tenure is defined by both the fixed time and the
stipulated retirement ages. In terms of section 328(7) of the
Constitution 2013, such an extension of tenure is an amendment to the
Constitution. It cannot benefit the persons who held or occupied the
office at any time before the amendment.
119.
Any extension of the length of time that persons who were judges of
the Constitutional Court and Supreme Court prior
to
the amendment of section 186 through the Constitution of Zimbabwe
Amendment (No.2) Act, 2021 would be a violation of the applicants
rights as protected by section 56(1) and section 69(3) of the
Constitution 2013.
Costs
120.
We consider that the issues raised in these two matters are of
national importance. They relate to the interpretation of provisions
of the Constitution and how those provisions affect the persons who
were judges of the Constitutional Court and Supreme Court before the
amendment which triggered the filing of the applications. For these
reasons, in accordance with the approach of the courts in matters of
this nature, we do not believe that any of the parties should be
ordered to pay costs.
Disposition
ln
the result, we make the following order:
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 I5 May 2021 at 0400 hours.
2.
The extension of the length of time in the office of the judge beyond
the age of 70 years provided for in section 186 of the Constitution
does not apply to the 2nd to 14th
and the 18th Respondents.
3.
There shall be no order as to costs.
CHAREWA
J agrees
MUSHORE
J agrees
Zimbabwe
Human Rights NGO Forum, applicant's legal practitioners in HC2128/21
Honey
& Blanckenberg, legal practitioners for the applicants in
HC2166/21
Kantor
& Immerman, legal practitioners for the 2nd to 19th respondents
in HC2128/21 and for the 1st and 2nd respondents in HC2166/21
Civil
Division of the Attorney-General's Office, legal practitioners for
the 1st respondent in HC2128/21 and for the 3rd respondent in
HC2166/21
