The applicant is a Member of Parliament representing the Mutare Central Constituency. He filed this application, essentially, in terms of section 167(2)(d) of the Constitution of Zimbabwe, 2013 (hereafter 'the Constitution') albeit with passing references to section 85 of the Constitution. In fact, in his answering affidavit, the applicant made it abundantly clear that the application was indeed solely in terms of section 167(2)(d) of the Constitution.

Thus, any references to section 85 of the Constitution shall be taken merely as means to bolster the principal cause of action, and not as a separate cause of action.

The applicant is a Member of Parliament representing the Mutare Central Constituency. He filed this application, essentially, in terms of section 167(2)(d) of the Constitution of Zimbabwe, 2013 (hereafter 'the Constitution') albeit with passing references to section 85 of the Constitution. In fact, in his answering affidavit, the applicant made it abundantly clear that the application was indeed solely in terms of section 167(2)(d) of the Constitution.

Thus, any references to section 85 of the Constitution shall be taken merely as means to bolster the principal cause of action, and not as a separate cause of action.

Initially, the applicant sought an order in the terms set out below:

“IT IS HEREBY DECLARED THAT:

1. The passage of Constitutional Amendment Bill (No.1) of 2017 in Parliament on the 4th of May 2021 be and is hereby set aside on the basis that the bill had lapsed in July of 2018 and therefore its passage was in breach of section 147 of the Constitution of Zimbabwe:

Therefore:

(i) The actions of Parliament, in passing Constitutional Amendment Bill No.1 of 2017, are in breach of the provisions of section 147 of the Constitution of Zimbabwe.

(ii) The actions of the President of the Republic of Zimbabwe, in assenting to Constitutional Amendment Bill No.1, are in breach of section 147 of the Constitution of Zimbabwe.

(iii) Constitutional Amendment No.1 Act of 2017, gazetted on the 7th of September 2017, be and is hereby set aside.

2. That, the judgment of the Constitutional Court, in the case of Innocent Gonese & Jessie Majome v The Speaker of Parliament & Others CC04-20, directing that part of the disposition of the Constitutional Court directing Senate passes Constitutional Amendment Bill No.1, within 180 days from the declaration of invalidity, be and is hereby declared to be a nullity in breach of section 147 of the Constitution of Zimbabwe.

3. 2nd Respondent must pay cost (sic) of suit.”

I have deliberately used the word “initially” for reasons that will shortly become apparent.

The application relates to the enactment of Constitution of Zimbabwe Amendment (No.1) Act 2017. The relevant facts are all common cause:

On 25 July 2017, the National Assembly passed Constitutional Amendment (No.1) Bill 2017. Thereafter, on 1 August 2017, the Senate purported to pass the same Bill. On 7 September 2017, the President assented to the Bill. The Bill was published in the Government Gazette, promulgated as law, and thereafter became known as Constitution of Zimbabwe Amendment (No.1) Act, 2017.

It is crucial to note, that, a few days prior to the President's assent, the applicant, and a fellow Member of Parliament, had filed an application, under case number CCZ57/17, in terms of section 167(2)(d) of the Constitution, alleging that the second respondent had failed to fulfil a constitutional obligation.

Subsequent to the promulgation of Constitution of Zimbabwe Amendment (No.1) Act 2017, the applicant, together with his fellow Member of Parliament aforesaid, filed another constitutional application, under case number CCZ58/17, on 13 September 2017. They alleged that the second respondent had failed to fulfil a constitutional obligation by its passing of a constitutional bill in the absence of a two-thirds majority as required by section 328 of the Constitution.

The applications under CCZ57/17 and CCZ58/17 were consolidated and heard on 31 January 2018. After hearing the parties submissions in respect of those applications, this Court reserved its judgment.

Pending the delivery of the judgment, the country underwent harmonised general elections on 30 July 2018. Thus, Parliament stood dissolved at midnight on 29 July 2018, the day before the first polling day of the general election in terms of section 143 of the Constitution.

On 31 March 2020, this Court passed judgment in respect of the applications under CCZ57/17 and CCZ58/17. That is, the judgment of Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 (hereafter referred to as 'CC04-20').

The operative part of that judgment reads as follows:

“1. It is declared that the passing of Constitutional Amendment Bill (No.1) of 2017 by the Senate on 01 August 2017 was inconsistent with the provisions of section 328(5) of the Constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House. Constitutional Amendment Bill (No.1) of 2017 is declared invalid to the extent of the inconsistency. The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).

Accordingly, the following order is made –

(a) The proceedings in the Senate, on 01 August 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and are hereby set aside for the reason that a two-thirds majority vote was not reached in that House.

(b) The Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within one hundred and eighty days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No.1) of 2017 in paragraph (1) shall become final.

2. The applicants allegation, that, there was no vote in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

3. The applicants allegation, that a two-thirds majority was not reached in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

4. There is no order as to costs.”

For reasons that are not pertinent to the present application, the Senate failed to conduct another vote within the period that was set out in paragraph 1(b) of the judgment under CC04-20.

As a result, the first and second respondents, and the Speaker of the National Assembly, implored this Court, by application, to extend the period that had been set out for conducting a second vote under case number CCZ11/20. The application was heard on 10 November 2020 and judgment was reserved.

On 25 February 2021, judgment was delivered in that application as the judgment of President of the Senate & Ors v Gonese & Ors CC01-21 (hereafter referred to as 'CC01-21'). The order passed in CC01-21 reads:

“Accordingly, I make the following order:

1. The application is granted.

2. The period referred to in para (b) of the order handed down on 31 March 2020 is extended by a further ninety days from the date of this order.

3. Each party shall bear its own costs.”

I digress briefly to foreshadow that I will advert to more comprehensively later in this judgment.

In view of the above order, the Senate conducted another vote on the Constitutional Amendment (No.1) Bill of 2017.

On 4 May 2021, it passed the Constitutional Amendment Bill (No.1).

The applicant contends, that, the passage of the Bill in the manner aforesaid, on 4 May 2021, is unconstitutional.

He principally considers the second and third respondents to have failed to fulfil constitutional obligations in the passage of the Bill contrary to the provisions of section 147 of the Constitution.

The applicant also considers the impugned conduct of the respondents to have been accentuated by the simultaneous violation of his rights under section 56(1) of the Constitution.

However, this last contention does not appear to have been persisted in with much vigour and conviction considering that the applicant stated, unambiguously, that, his application was solely in terms of section 167(2)(d) of the Constitution. In fact, the amicus considers this as the applicant's “fringe” contention.

At any rate, in my view, there would be no need to invoke section 56(1) of the Constitution where the cause of action is one of failure to fulfil a constitutional obligation as that situation is specifically provided for sufficiently in section 167(2)(d) of the Constitution, and requires no additional colouring through such invocation: compare Central African Building Society v Stone & Ors SC15-21.

All the respondents opposed the application.

They deny that their conduct, in the passage of Constitutional Amendment (No.1) Bill of 2017, was in violation of section 147 of the Constitution. Instead, they contend, that, their actions are predicated on a valid order of this Court handed down under CC04-20. They also maintain that none of the applicant's rights was violated by their conduct....,.

On 15 March, the parties then advanced their oral submissions in respect of the application.

Counsel for the applicant stated, that, the critical issue for determination was whether the passage of Constitution of Zimbabwe Amendment (No.1) Act of 2017, on 4 May 2021, breached section 147 of the Constitution.

To him, the crucial thing was to assess the status of the Bill as of 29 July 2018, which is the date on which Parliament stood dissolved.

The date the judgment of this Court, in Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 was delivered was immaterial.

Citing decisions of this Court and the Supreme Court, counsel for the applicant stated, that, the order of this Court in CC04-20 merely confirmed the invalidity of Constitution of Zimbabwe Amendment (No.1) Act, which occurred in August 2017 when that Act was purportedly passed. It was, therefore, not a licence for the Senate to violate section 147 of the Constitution.

Accordingly, he submitted, that, Constitution Amendment (No.1) Bill lapsed when Parliament was dissolved on 29 July 2018.

In respect of the allegations that the applicant's constitutional rights were violated by the conduct of the respondents, counsel for the applicant submitted, that, section 56(1) of the Constitution does not qualify the nature of protection afforded by the section. In his view, the subsection had the same meaning as the equivalent provision under the previous Constitution of Zimbabwe.

Regarding the relief sought by the applicant, counsel for the applicant emphasised that the applicant simply sought a declaration that the passage of Constitution of Zimbabwe Amendment (No.1) Act, on 5 May 2021, was in breach of section 147 of the Constitution.

He formally abandoned the second paragraph of the applicant's draft order set out above.

He added, that, should the Court grant the declaratory relief sought, the order should not have retrospective effect.

Counsel for the applicant also abandoned his preliminary challenges to the authorities of the deponents to the first and second as well as the third respondent's opposing affidavits.

Counsel for the first and second respondents indicated, that, he was persisting with the preliminary points that he raised:

(i) Firstly, he submitted, that, the Court had no jurisdiction as the applicant had improperly joined the President of the Senate to the President and Parliament in an application under section 167(2)(d) contrary to the judgment of this Court in Mliswa v Parliament of the Republic of Zimbabwe CC02-21.

(ii) Secondly, he submitted, that, the applicant had no cause of action because the conduct of the respondents was in compliance with an order of this Court.

On the merits, counsel for the first and second respondents stated, that, the retrospective application of the order passed in CC04-20 was limited. Further, the Court had the power to limit the retrospective application in terms of section 175(6)(b) of the Constitution. Therefore, the provisions of section 147 could not have been breached, so his submissions went.

Counsel for the third respondent also put up ardent opposition to the application.

Essentially, he took three points in response to counsel for the applicant's submissions. He prefaced those points by stating that there are three broad steps in the enactment of a law. These are:

(i) The consideration of a Bill by the National Assembly;

(ii) The consideration of the same Bill by the Senate;

(iii) The President's assent to the Bill as the last step;

Counsel for the third respondent's first point was, that, the Presidential assent to the Bill, in 2017, was not set aside by this Court. Therefore, there was no failure by the third respondent to “re-gazette” the Bill as the applicant had pleaded.

His second point was that when Parliament was dissolved, in July 2018, there was no Constitution Amendment (No.1) Bill. It had become an Act. This meant, that, the declaration by this Court could not have affected the status of that Act as it had limited retrospective effect.

Counsel for the third respondent's third point was, that, section 147 of the Constitution does not impose an obligation on the third respondent. In the absence of such, there cannot be a constitutional obligation that the third respondent breached.

All the respondents prayed for the dismissal of the application.

Mr Zhuwarara, the amicus curiae, made submissions last.

His first submission was, that, the moment the applicant adverted to violations in terms of section 85 of the Constitution, he was obliged to allege that a fundamental right was infringed and to seek relief that is consistent with Chapter 4 of the Constitution. He further submitted, that, the applicant failed to base his relief on Chapter 4 of the Constitution and that ought to be the end of the matter.

On the merits of the application, the amicus submitted, that, judgments of the Constitutional Court are final. On this basis, the judgment in CC04-20 could not be revisited.

While agreeing that the Constitutional Court cannot pass unconstitutional judgments, he stated that this was not the situation in casu.

Proceeding from this point, he added, that, in terms of section 175(6)(b) of the Constitution, this Court passes corrective orders. For this reason, the order of this Court, and the subsequent passage of the Bill by the Senate, did not violate the Constitution.

Mr Zhuwarara concluded his submissions by stating, that, the applicant's rights, in section 56 of the Constitution, could not have been violated because the applicant failed to identify a similarly positioned person who was afforded a favour.

The respondents raised several preliminary objections in these proceedings. However, in their oral submissions they emphasized and focused only on the following:

(a) That, there is no cause of action against the respondents.

(b) That, it was improper to cite the first respondent in an application under section 167(2)(d) of the Constitution.

While counsel for the first and second respondents is of the view, that, there cannot be any perceivable cause of action against the respondents as they were acting in accordance with an order of this Court, counsel for the third respondent considers the cause of action to be unclear.

Without exception, the Rules require an applicant to set out all essential averments that are necessary to clarify and motivate the cause of action: see Rule 14(4)(d) of the Constitutional Court Rules.

See also Apex Holdings (Pvt) Ltd (in liquidation) & Anor v Venetian Blinds Specialists CC11-19…,.

This rule is in line with the salutary principle of pleading, which has become the gold standard in our jurisdiction, that, an application stands or falls on the founding affidavit: see Kufa & Anor v President of the Republic of Zimbabwe & Ors CC22-17…,.; Chani v Justice Hlekani Mwayera & Ors CC02-20…,.; Chironga & Anor v Minister of Justice, Legal & Parliamentary Affairs CC14-20…,.; and Mpofu v ZERA & Ors CC13-20…,.

A failure to set out the cause of action entitles a respondent to seek the dismissal of an application as of right: see HERBSTEIN and Van WINSEN “The Civil Practice of the High Courts and the Supreme Courts of Appeal of South Africa” 5th Ed. Vol 1…,.

The requirements of an application made in terms section 167(2)(d) of the Constitution are that one must identify a functionary [the President/Parliament] and a constitutional obligation that the functionary is alleged to have failed to fulfil: see Chirambwe v President of the Republic of Zimbabwe & Ors CC04–21…,. and Mliswa v Parliament of the Republic of Zimbabwe CC02–21…,.

It automatically follows, that, the applicant cannot sustain a cause of action against the first respondent because the first respondent is not a functionary against whom an application in terms section 167(2)(d) of the Constitution can be made.

Thus, the case as against the first respondent stands to be struck off without further ado.

In respect of the second and third respondents, I am inclined to hold, that, there is a cause of action against those functionaries.

In his founding affidavit, the applicant does identify the second and third respondents as functionaries upon whom constitutional obligations rest. He also identifies the constitutional obligations that Parliament and the President failed to fulfil.

Against the President, he states that failure to gazette Constitutional Amendment Bill (No.1) of 2017 in terms of section 131(6) of the Constitution is an illegality. Against Parliament, he essentially alleges, that, it failed to respect the Constitution by conducting a vote on a Bill that had lapsed contrary to section 147 of the Constitution.

However, the truthfulness or otherwise of the applicant's allegations against the second and third respondents stands to be determined in the process of the assessment of the merits of his application.

Accordingly, I am satisfied that there is a cause of action against the second and third respondents in so far as the application is based on section 167(2)(d) of the Constitution.

The applicant is a Member of Parliament representing the Mutare Central Constituency. He filed this application, essentially, in terms of section 167(2)(d) of the Constitution of Zimbabwe, 2013 (hereafter 'the Constitution') albeit with passing references to section 85 of the Constitution. In fact, in his answering affidavit, the applicant made it abundantly clear that the application was indeed solely in terms of section 167(2)(d) of the Constitution.

Thus, any references to section 85 of the Constitution shall be taken merely as means to bolster the principal cause of action, and not as a separate cause of action.

Initially, the applicant sought an order in the terms set out below:

“IT IS HEREBY DECLARED THAT:

1. The passage of Constitutional Amendment Bill (No.1) of 2017 in Parliament on the 4th of May 2021 be and is hereby set aside on the basis that the bill had lapsed in July of 2018 and therefore its passage was in breach of section 147 of the Constitution of Zimbabwe:

Therefore:

(i) The actions of Parliament, in passing Constitutional Amendment Bill No.1 of 2017, are in breach of the provisions of section 147 of the Constitution of Zimbabwe.

(ii) The actions of the President of the Republic of Zimbabwe, in assenting to Constitutional Amendment Bill No.1, are in breach of section 147 of the Constitution of Zimbabwe.

(iii) Constitutional Amendment No.1 Act of 2017, gazetted on the 7th of September 2017, be and is hereby set aside.

2. That, the judgment of the Constitutional Court, in the case of Innocent Gonese & Jessie Majome v The Speaker of Parliament & Others CC04-20, directing that part of the disposition of the Constitutional Court directing Senate passes Constitutional Amendment Bill No.1, within 180 days from the declaration of invalidity, be and is hereby declared to be a nullity in breach of section 147 of the Constitution of Zimbabwe.

3. 2nd Respondent must pay cost (sic) of suit.”

I have deliberately used the word “initially” for reasons that will shortly become apparent.

The application relates to the enactment of Constitution of Zimbabwe Amendment (No.1) Act 2017. The relevant facts are all common cause:

On 25 July 2017, the National Assembly passed Constitutional Amendment (No.1) Bill 2017. Thereafter, on 1 August 2017, the Senate purported to pass the same Bill. On 7 September 2017, the President assented to the Bill. The Bill was published in the Government Gazette, promulgated as law, and thereafter became known as Constitution of Zimbabwe Amendment (No.1) Act, 2017.

It is crucial to note, that, a few days prior to the President's assent, the applicant, and a fellow Member of Parliament, had filed an application, under case number CCZ57/17, in terms of section 167(2)(d) of the Constitution, alleging that the second respondent had failed to fulfil a constitutional obligation.

Subsequent to the promulgation of Constitution of Zimbabwe Amendment (No.1) Act 2017, the applicant, together with his fellow Member of Parliament aforesaid, filed another constitutional application, under case number CCZ58/17, on 13 September 2017. They alleged that the second respondent had failed to fulfil a constitutional obligation by its passing of a constitutional bill in the absence of a two-thirds majority as required by section 328 of the Constitution.

The applications under CCZ57/17 and CCZ58/17 were consolidated and heard on 31 January 2018. After hearing the parties submissions in respect of those applications, this Court reserved its judgment.

Pending the delivery of the judgment, the country underwent harmonised general elections on 30 July 2018. Thus, Parliament stood dissolved at midnight on 29 July 2018, the day before the first polling day of the general election in terms of section 143 of the Constitution.

On 31 March 2020, this Court passed judgment in respect of the applications under CCZ57/17 and CCZ58/17. That is, the judgment of Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 (hereafter referred to as 'CC04-20').

The operative part of that judgment reads as follows:

“1. It is declared that the passing of Constitutional Amendment Bill (No.1) of 2017 by the Senate on 01 August 2017 was inconsistent with the provisions of section 328(5) of the Constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House. Constitutional Amendment Bill (No.1) of 2017 is declared invalid to the extent of the inconsistency. The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).

Accordingly, the following order is made –

(a) The proceedings in the Senate, on 01 August 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and are hereby set aside for the reason that a two-thirds majority vote was not reached in that House.

(b) The Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within one hundred and eighty days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No.1) of 2017 in paragraph (1) shall become final.

2. The applicants allegation, that, there was no vote in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

3. The applicants allegation, that a two-thirds majority was not reached in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

4. There is no order as to costs.”

For reasons that are not pertinent to the present application, the Senate failed to conduct another vote within the period that was set out in paragraph 1(b) of the judgment under CC04-20.

As a result, the first and second respondents, and the Speaker of the National Assembly, implored this Court, by application, to extend the period that had been set out for conducting a second vote under case number CCZ11/20. The application was heard on 10 November 2020 and judgment was reserved.

On 25 February 2021, judgment was delivered in that application as the judgment of President of the Senate & Ors v Gonese & Ors CC01-21 (hereafter referred to as 'CC01-21'). The order passed in CC01-21 reads:

“Accordingly, I make the following order:

1. The application is granted.

2. The period referred to in para (b) of the order handed down on 31 March 2020 is extended by a further ninety days from the date of this order.

3. Each party shall bear its own costs.”

I digress briefly to foreshadow that I will advert to more comprehensively later in this judgment.

In view of the above order, the Senate conducted another vote on the Constitutional Amendment (No.1) Bill of 2017.

On 4 May 2021, it passed the Constitutional Amendment Bill (No.1).

The applicant contends, that, the passage of the Bill in the manner aforesaid, on 4 May 2021, is unconstitutional.

He principally considers the second and third respondents to have failed to fulfil constitutional obligations in the passage of the Bill contrary to the provisions of section 147 of the Constitution.

The applicant also considers the impugned conduct of the respondents to have been accentuated by the simultaneous violation of his rights under section 56(1) of the Constitution.

However, this last contention does not appear to have been persisted in with much vigour and conviction considering that the applicant stated, unambiguously, that, his application was solely in terms of section 167(2)(d) of the Constitution. In fact, the amicus considers this as the applicant's “fringe” contention.

At any rate, in my view, there would be no need to invoke section 56(1) of the Constitution where the cause of action is one of failure to fulfil a constitutional obligation as that situation is specifically provided for sufficiently in section 167(2)(d) of the Constitution, and requires no additional colouring through such invocation: compare Central African Building Society v Stone & Ors SC15-21.

All the respondents opposed the application.

They deny that their conduct, in the passage of Constitutional Amendment (No.1) Bill of 2017, was in violation of section 147 of the Constitution. Instead, they contend, that, their actions are predicated on a valid order of this Court handed down under CC04-20. They also maintain that none of the applicant's rights was violated by their conduct.

The first hearing of this application was conducted on 16 February 2022. Counsel for the applicant moved the Court to grant him a postponement so that he could respond to the amicus curiae's heads of argument. He submitted, that, the amicus curiae's heads of argument were unsympathetic towards the applicant and that the amicus curiae raised new issues in relation to the interpretation of section 56 of the Constitution.

Counsel for the first and second respondents opposed the application for a postponement on the basis, that, the issues raised by the amicus had already been canvassed by the first and second respondents. On the other hand, counsel for the third respondent had no objection to this application. He submitted, that, the applicant could not be denied the opportunity to respond to the amicus curiae's heads of argument.

Following exchanges with all counsel, the Court then ordered, by consent, that the applicant was to file and serve heads of argument in response to the amicus curiae's heads of argument by no later than 4pm on 25 February 2022; and, further that, the respondents could, if so inclined, file and serve heads of argument in response to the applicant's heads of argument by no later than 4pm on 4 March 2022.

The matter was postponed to 15 March 2022.

A decision that is based on invalid process cannot stand.

The applicant is a Member of Parliament representing the Mutare Central Constituency. He filed this application, essentially, in terms of section 167(2)(d) of the Constitution of Zimbabwe, 2013 (hereafter 'the Constitution') albeit with passing references to section 85 of the Constitution. In fact, in his answering affidavit, the applicant made it abundantly clear that the application was indeed solely in terms of section 167(2)(d) of the Constitution.

Thus, any references to section 85 of the Constitution shall be taken merely as means to bolster the principal cause of action, and not as a separate cause of action.

Initially, the applicant sought an order in the terms set out below:

“IT IS HEREBY DECLARED THAT:

1. The passage of Constitutional Amendment Bill (No.1) of 2017 in Parliament on the 4th of May 2021 be and is hereby set aside on the basis that the bill had lapsed in July of 2018 and therefore its passage was in breach of section 147 of the Constitution of Zimbabwe:

Therefore:

(i) The actions of Parliament, in passing Constitutional Amendment Bill No.1 of 2017, are in breach of the provisions of section 147 of the Constitution of Zimbabwe.

(ii) The actions of the President of the Republic of Zimbabwe, in assenting to Constitutional Amendment Bill No.1, are in breach of section 147 of the Constitution of Zimbabwe.

(iii) Constitutional Amendment No.1 Act of 2017, gazetted on the 7th of September 2017, be and is hereby set aside.

2. That, the judgment of the Constitutional Court, in the case of Innocent Gonese & Jessie Majome v The Speaker of Parliament & Others CC04-20, directing that part of the disposition of the Constitutional Court directing Senate passes Constitutional Amendment Bill No.1, within 180 days from the declaration of invalidity, be and is hereby declared to be a nullity in breach of section 147 of the Constitution of Zimbabwe.

3. 2nd Respondent must pay cost (sic) of suit.”

I have deliberately used the word “initially” for reasons that will shortly become apparent.

The application relates to the enactment of Constitution of Zimbabwe Amendment (No.1) Act 2017. The relevant facts are all common cause:

On 25 July 2017, the National Assembly passed Constitutional Amendment (No.1) Bill 2017. Thereafter, on 1 August 2017, the Senate purported to pass the same Bill. On 7 September 2017, the President assented to the Bill. The Bill was published in the Government Gazette, promulgated as law, and thereafter became known as Constitution of Zimbabwe Amendment (No.1) Act, 2017.

It is crucial to note, that, a few days prior to the President's assent, the applicant, and a fellow Member of Parliament, had filed an application, under case number CCZ57/17, in terms of section 167(2)(d) of the Constitution, alleging that the second respondent had failed to fulfil a constitutional obligation.

Subsequent to the promulgation of Constitution of Zimbabwe Amendment (No.1) Act 2017, the applicant, together with his fellow Member of Parliament aforesaid, filed another constitutional application, under case number CCZ58/17, on 13 September 2017. They alleged that the second respondent had failed to fulfil a constitutional obligation by its passing of a constitutional bill in the absence of a two-thirds majority as required by section 328 of the Constitution.

The applications under CCZ57/17 and CCZ58/17 were consolidated and heard on 31 January 2018. After hearing the parties submissions in respect of those applications, this Court reserved its judgment.

Pending the delivery of the judgment, the country underwent harmonised general elections on 30 July 2018. Thus, Parliament stood dissolved at midnight on 29 July 2018, the day before the first polling day of the general election in terms of section 143 of the Constitution.

On 31 March 2020, this Court passed judgment in respect of the applications under CCZ57/17 and CCZ58/17. That is, the judgment of Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 (hereafter referred to as 'CC04-20').

The operative part of that judgment reads as follows:

“1. It is declared that the passing of Constitutional Amendment Bill (No.1) of 2017 by the Senate on 01 August 2017 was inconsistent with the provisions of section 328(5) of the Constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House. Constitutional Amendment Bill (No.1) of 2017 is declared invalid to the extent of the inconsistency. The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).

Accordingly, the following order is made –

(a) The proceedings in the Senate, on 01 August 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and are hereby set aside for the reason that a two-thirds majority vote was not reached in that House.

(b) The Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within one hundred and eighty days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No.1) of 2017 in paragraph (1) shall become final.

2. The applicants allegation, that, there was no vote in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

3. The applicants allegation, that a two-thirds majority was not reached in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

4. There is no order as to costs.”

For reasons that are not pertinent to the present application, the Senate failed to conduct another vote within the period that was set out in paragraph 1(b) of the judgment under CC04-20.

As a result, the first and second respondents, and the Speaker of the National Assembly, implored this Court, by application, to extend the period that had been set out for conducting a second vote under case number CCZ11/20. The application was heard on 10 November 2020 and judgment was reserved.

On 25 February 2021, judgment was delivered in that application as the judgment of President of the Senate & Ors v Gonese & Ors CC01-21 (hereafter referred to as 'CC01-21'). The order passed in CC01-21 reads:

“Accordingly, I make the following order:

1. The application is granted.

2. The period referred to in para (b) of the order handed down on 31 March 2020 is extended by a further ninety days from the date of this order.

3. Each party shall bear its own costs.”

I digress briefly to foreshadow that I will advert to more comprehensively later in this judgment.

In view of the above order, the Senate conducted another vote on the Constitutional Amendment (No.1) Bill of 2017.

On 4 May 2021, it passed the Constitutional Amendment Bill (No.1).

The applicant contends, that, the passage of the Bill in the manner aforesaid, on 4 May 2021, is unconstitutional.

He principally considers the second and third respondents to have failed to fulfil constitutional obligations in the passage of the Bill contrary to the provisions of section 147 of the Constitution.

The applicant also considers the impugned conduct of the respondents to have been accentuated by the simultaneous violation of his rights under section 56(1) of the Constitution.

However, this last contention does not appear to have been persisted in with much vigour and conviction considering that the applicant stated, unambiguously, that, his application was solely in terms of section 167(2)(d) of the Constitution. In fact, the amicus considers this as the applicant's “fringe” contention.

At any rate, in my view, there would be no need to invoke section 56(1) of the Constitution where the cause of action is one of failure to fulfil a constitutional obligation as that situation is specifically provided for sufficiently in section 167(2)(d) of the Constitution, and requires no additional colouring through such invocation: compare Central African Building Society v Stone & Ors SC15-21.

All the respondents opposed the application.

They deny that their conduct, in the passage of Constitutional Amendment (No.1) Bill of 2017, was in violation of section 147 of the Constitution. Instead, they contend, that, their actions are predicated on a valid order of this Court handed down under CC04-20. They also maintain that none of the applicant's rights was violated by their conduct.

The first hearing of this application was conducted on 16 February 2022. Counsel for the applicant moved the Court to grant him a postponement so that he could respond to the amicus curiae's heads of argument. He submitted, that, the amicus curiae's heads of argument were unsympathetic towards the applicant and that the amicus curiae raised new issues in relation to the interpretation of section 56 of the Constitution.

Counsel for the first and second respondents opposed the application for a postponement on the basis, that, the issues raised by the amicus had already been canvassed by the first and second respondents. On the other hand, counsel for the third respondent had no objection to this application. He submitted, that, the applicant could not be denied the opportunity to respond to the amicus curiae's heads of argument.

Following exchanges with all counsel, the Court then ordered, by consent, that the applicant was to file and serve heads of argument in response to the amicus curiae's heads of argument by no later than 4pm on 25 February 2022; and, further that, the respondents could, if so inclined, file and serve heads of argument in response to the applicant's heads of argument by no later than 4pm on 4 March 2022.

The matter was postponed to 15 March 2022.

In the applicant's heads of argument, filed pursuant to our order on 16 February 2022, counsel for the applicant made submissions on the role of an amicus curiae. On the subsequent hearing, counsel for the applicant indicated, that, he was persisting with his point on the impropriety of, and objection to, the amicus heads of argument.

Therefore, the question of the propriety of the amicus curiae's heads of argument confronts us for determination.

In the applicant's heads of argument, filed on 25 February 2022, counsel for the applicant submitted, that, the amicus curiae took a side. In short, he was biased. He further contended:

“This amicus has chosen to bolster a secretarian (sic) and partisan interest and not the interests of justice in the instant matter (of) whether or not the authorities, that is the President and Parliament, breached section 147 of the Constitution.”

Proceeding from the above-cited contention, the amicus heads of argument were described as “operating (as) a stray bullet” and counsel for the applicant submitted that was unacceptable and the amicus ought to have been replaced with “someone more professional and non-partisan.”

In support of his contentions, counsel for the applicant drew our attention to a passage by I. CURRIE and J. De WAAL in The Bill of Rights Handbook 1st Edition, (Cape Town: Juta & Company, 2013).

In terms of Rule 10(1) of the Constitutional Court Rules 2016 (“the Rules”), the Court is entitled to invite any person with particular expertise which is relevant to the determination of any matter before it to appear as amicus curiae.

The amicus, in this case, was invited in terms of the foregoing Rule. He was obliged to file heads of argument within the time that was stipulated by the Court.

Where an amicus curiae is invited by the Court to appear in any matter, such an invitation accords with one of three conceptions of amici that is offered by GEOFF BUDLENDER “Amicus Curiae” in WOOLMAN ET AL, eds, Constitutional Law of South Africa, 2nd Ed, 2012…,. The author states:

“A second form of amicus responds to a request by a court for counsel to appear before it to provide assistance in developing answers to novel questions of law which arise in a matter, or (less commonly) where a person asks leave to intervene for this purpose. In such cases, the amicus curiae does not, ostensibly, represent a particular interest or point of view.”

Rule 10(5) of the Constitutional Court Rules is particularly instructive to any person who is appointed as amicus curiae. It reads:

“(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.”

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)…, 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)…, 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.”

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 s\he urges the Court to reach.

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.

Having said this, I find nothing in the amicus curiae's heads of argument that runs contrary to his role in this matter.

The amicus advanced written submissions on the finality of judgments of this Court, the locus standi of the applicant, and the competency of the draft relief, among other things. He also considered whether or not the applicant's rights, under section 56(1) of the Constitution, were violated.

All these submissions were based on the pleadings and written contentions that had already been filed.

The amicus was at large to identify any procedural defect in the application that would have precluded the Court from determining the application, because, a decision that is based on invalid process cannot stand.

For those with a literary bent, the court of justice in William Shakepeare's play, The Merchant of Venice, eagerly awaits the arrival of the invited amicus, Bellario “a learned doctor” but he is indisposed. However, in his place, the court “courteously” welcomes Bellario's recommended substitute, youthful yet reputably equally knowledgeable Balthasar, who happens to be Portia in disguise.

Thus, the principles of appointment of amici, their roles in assisting the court, and their substitution, where necessary, have stood the test of time; hence, their reflection in popular culture, as graphically demonstrated in this play, with stunning accuracy in portrayal of court practices - literary licence aside.

Accordingly, I will dismiss counsel for the applicant's objections to the amicus. He could not impugn the amicus sincerity simply because the amicus reached a conclusion that was contrary to his client's interests.

Initially, the applicant sought an order in the terms set out below:

“IT IS HEREBY DECLARED THAT:

1. The passage of Constitutional Amendment Bill (No.1) of 2017 in Parliament on the 4th of May 2021 be and is hereby set aside on the basis that the bill had lapsed in July of 2018 and therefore its passage was in breach of section 147 of the Constitution of Zimbabwe:

Therefore:

(i) The actions of Parliament, in passing Constitutional Amendment Bill No.1 of 2017, are in breach of the provisions of section 147 of the Constitution of Zimbabwe.

(ii) The actions of the President of the Republic of Zimbabwe, in assenting to Constitutional Amendment Bill No.1, are in breach of section 147 of the Constitution of Zimbabwe.

(iii) Constitutional Amendment No.1 Act of 2017, gazetted on the 7th of September 2017, be and is hereby set aside.

2. That, the judgment of the Constitutional Court, in the case of Innocent Gonese & Jessie Majome v The Speaker of Parliament & Others CC04-20, directing that part of the disposition of the Constitutional Court directing Senate passes Constitutional Amendment Bill No.1, within 180 days from the declaration of invalidity, be and is hereby declared to be a nullity in breach of section 147 of the Constitution of Zimbabwe.

3. 2nd Respondent must pay cost (sic) of suit.”...,.

Counsel for the applicant formally abandoned the second paragraph of the applicant's draft order...,.

The applicant abandoned the part of his draft relief that would have nullified the decision of this Court in CC04–20, which abandonment suggests that he no longer wishes to impugn that decision....,.

Counsel for the applicant also abandoned his preliminary challenges to the authorities of the deponents to the first and second as well as the third respondent's opposing affidavits....,.

The applicant is a Member of Parliament representing the Mutare Central Constituency. He filed this application, essentially, in terms of section 167(2)(d) of the Constitution of Zimbabwe, 2013 (hereafter 'the Constitution') albeit with passing references to section 85 of the Constitution. In fact, in his answering affidavit, the applicant made it abundantly clear that the application was indeed solely in terms of section 167(2)(d) of the Constitution.

Thus, any references to section 85 of the Constitution shall be taken merely as means to bolster the principal cause of action, and not as a separate cause of action....,.

The amicus was at large to identify any procedural defect in the application that would have precluded the Court from determining the application, because, a decision that is based on invalid process cannot stand....,.

Mr Zhuwarara, the amicus curiae, made submissions last.

His first submission was, that, the moment the applicant adverted to violations in terms of section 85 of the Constitution, he was obliged to allege that a fundamental right was infringed and to seek relief that is consistent with Chapter 4 of the Constitution.

He further submitted, that, the applicant failed to base his relief on Chapter 4 of the Constitution and that ought to be the end of the matter....,.

As a way of bolstering his principal claim under section 167 of the Constitution, but, not as a separate cause of action, the applicant alleged, that, the various acts of commission and omission by the respondents violated his rights under section 56(1) of the Constitution.

Counsel for the applicant insisted on this point, of bolstering his argument, in his oral submissions.

The applicant is a Member of Parliament representing the Mutare Central Constituency. He filed this application, essentially, in terms of section 167(2)(d) of the Constitution of Zimbabwe, 2013 (hereafter 'the Constitution') albeit with passing references to section 85 of the Constitution. In fact, in his answering affidavit, the applicant made it abundantly clear that the application was indeed solely in terms of section 167(2)(d) of the Constitution.

Thus, any references to section 85 of the Constitution shall be taken merely as means to bolster the principal cause of action, and not as a separate cause of action.

Initially, the applicant sought an order in the terms set out below:

“IT IS HEREBY DECLARED THAT:

1. The passage of Constitutional Amendment Bill (No.1) of 2017 in Parliament on the 4th of May 2021 be and is hereby set aside on the basis that the bill had lapsed in July of 2018 and therefore its passage was in breach of section 147 of the Constitution of Zimbabwe:

Therefore:

(i) The actions of Parliament, in passing Constitutional Amendment Bill No.1 of 2017, are in breach of the provisions of section 147 of the Constitution of Zimbabwe.

(ii) The actions of the President of the Republic of Zimbabwe, in assenting to Constitutional Amendment Bill No.1, are in breach of section 147 of the Constitution of Zimbabwe.

(iii) Constitutional Amendment No.1 Act of 2017, gazetted on the 7th of September 2017, be and is hereby set aside.

2. That, the judgment of the Constitutional Court, in the case of Innocent Gonese & Jessie Majome v The Speaker of Parliament & Others CC04-20, directing that part of the disposition of the Constitutional Court directing Senate passes Constitutional Amendment Bill No.1, within 180 days from the declaration of invalidity, be and is hereby declared to be a nullity in breach of section 147 of the Constitution of Zimbabwe.

3. 2nd Respondent must pay cost (sic) of suit.”

I have deliberately used the word “initially” for reasons that will shortly become apparent.

The application relates to the enactment of Constitution of Zimbabwe Amendment (No.1) Act 2017. The relevant facts are all common cause:

On 25 July 2017, the National Assembly passed Constitutional Amendment (No.1) Bill 2017. Thereafter, on 1 August 2017, the Senate purported to pass the same Bill. On 7 September 2017, the President assented to the Bill. The Bill was published in the Government Gazette, promulgated as law, and thereafter became known as Constitution of Zimbabwe Amendment (No.1) Act, 2017.

It is crucial to note, that, a few days prior to the President's assent, the applicant, and a fellow Member of Parliament, had filed an application, under case number CCZ57/17, in terms of section 167(2)(d) of the Constitution, alleging that the second respondent had failed to fulfil a constitutional obligation.

Subsequent to the promulgation of Constitution of Zimbabwe Amendment (No.1) Act 2017, the applicant, together with his fellow Member of Parliament aforesaid, filed another constitutional application, under case number CCZ58/17, on 13 September 2017. They alleged that the second respondent had failed to fulfil a constitutional obligation by its passing of a constitutional bill in the absence of a two-thirds majority as required by section 328 of the Constitution.

The applications under CCZ57/17 and CCZ58/17 were consolidated and heard on 31 January 2018. After hearing the parties submissions in respect of those applications, this Court reserved its judgment.

Pending the delivery of the judgment, the country underwent harmonised general elections on 30 July 2018. Thus, Parliament stood dissolved at midnight on 29 July 2018, the day before the first polling day of the general election in terms of section 143 of the Constitution.

On 31 March 2020, this Court passed judgment in respect of the applications under CCZ57/17 and CCZ58/17. That is, the judgment of Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 (hereafter referred to as 'CC04-20').

The operative part of that judgment reads as follows:

“1. It is declared that the passing of Constitutional Amendment Bill (No.1) of 2017 by the Senate on 01 August 2017 was inconsistent with the provisions of section 328(5) of the Constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House. Constitutional Amendment Bill (No.1) of 2017 is declared invalid to the extent of the inconsistency. The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).

Accordingly, the following order is made –

(a) The proceedings in the Senate, on 01 August 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and are hereby set aside for the reason that a two-thirds majority vote was not reached in that House.

(b) The Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within one hundred and eighty days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No.1) of 2017 in paragraph (1) shall become final.

2. The applicants allegation, that, there was no vote in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

3. The applicants allegation, that a two-thirds majority was not reached in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

4. There is no order as to costs.”

For reasons that are not pertinent to the present application, the Senate failed to conduct another vote within the period that was set out in paragraph 1(b) of the judgment under CC04-20.

As a result, the first and second respondents, and the Speaker of the National Assembly, implored this Court, by application, to extend the period that had been set out for conducting a second vote under case number CCZ11/20. The application was heard on 10 November 2020 and judgment was reserved.

On 25 February 2021, judgment was delivered in that application as the judgment of President of the Senate & Ors v Gonese & Ors CC01-21 (hereafter referred to as 'CC01-21'). The order passed in CC01-21 reads:

“Accordingly, I make the following order:

1. The application is granted.

2. The period referred to in para (b) of the order handed down on 31 March 2020 is extended by a further ninety days from the date of this order.

3. Each party shall bear its own costs.”

I digress briefly to foreshadow that I will advert to more comprehensively later in this judgment.

In view of the above order, the Senate conducted another vote on the Constitutional Amendment (No.1) Bill of 2017.

On 4 May 2021, it passed the Constitutional Amendment Bill (No.1).

The applicant contends, that, the passage of the Bill in the manner aforesaid, on 4 May 2021, is unconstitutional.

He principally considers the second and third respondents to have failed to fulfil constitutional obligations in the passage of the Bill contrary to the provisions of section 147 of the Constitution.

The applicant also considers the impugned conduct of the respondents to have been accentuated by the simultaneous violation of his rights under section 56(1) of the Constitution.

However, this last contention does not appear to have been persisted in with much vigour and conviction considering that the applicant stated, unambiguously, that, his application was solely in terms of section 167(2)(d) of the Constitution. In fact, the amicus considers this as the applicant's “fringe” contention.

At any rate, in my view, there would be no need to invoke section 56(1) of the Constitution where the cause of action is one of failure to fulfil a constitutional obligation as that situation is specifically provided for sufficiently in section 167(2)(d) of the Constitution, and requires no additional colouring through such invocation: compare Central African Building Society v Stone & Ors SC15-21.

All the respondents opposed the application.

They deny that their conduct, in the passage of Constitutional Amendment (No.1) Bill of 2017, was in violation of section 147 of the Constitution. Instead, they contend, that, their actions are predicated on a valid order of this Court handed down under CC04-20. They also maintain that none of the applicant's rights was violated by their conduct....,.

On 15 March, the parties then advanced their oral submissions in respect of the application.

Counsel for the applicant stated, that, the critical issue for determination was whether the passage of Constitution of Zimbabwe Amendment (No.1) Act of 2017, on 4 May 2021, breached section 147 of the Constitution.

To him, the crucial thing was to assess the status of the Bill as of 29 July 2018, which is the date on which Parliament stood dissolved.

The date the judgment of this Court, in Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 was delivered was immaterial.

Citing decisions of this Court and the Supreme Court, counsel for the applicant stated, that, the order of this Court in CC04-20 merely confirmed the invalidity of Constitution of Zimbabwe Amendment (No.1) Act, which occurred in August 2017 when that Act was purportedly passed. It was, therefore, not a licence for the Senate to violate section 147 of the Constitution.

Accordingly, he submitted, that, Constitution Amendment (No.1) Bill lapsed when Parliament was dissolved on 29 July 2018.

In respect of the allegations that the applicant's constitutional rights were violated by the conduct of the respondents, counsel for the applicant submitted, that, section 56(1) of the Constitution does not qualify the nature of protection afforded by the section. In his view, the subsection had the same meaning as the equivalent provision under the previous Constitution of Zimbabwe.

Regarding the relief sought by the applicant, counsel for the applicant emphasised that the applicant simply sought a declaration that the passage of Constitution of Zimbabwe Amendment (No.1) Act, on 5 May 2021, was in breach of section 147 of the Constitution.

He formally abandoned the second paragraph of the applicant's draft order set out above.

He added, that, should the Court grant the declaratory relief sought, the order should not have retrospective effect.

Counsel for the applicant also abandoned his preliminary challenges to the authorities of the deponents to the first and second as well as the third respondent's opposing affidavits.

Counsel for the first and second respondents indicated, that, he was persisting with the preliminary points that he raised:

(i) Firstly, he submitted, that, the Court had no jurisdiction as the applicant had improperly joined the President of the Senate to the President and Parliament in an application under section 167(2)(d) contrary to the judgment of this Court in Mliswa v Parliament of the Republic of Zimbabwe CC02-21.

(ii) Secondly, he submitted, that, the applicant had no cause of action because the conduct of the respondents was in compliance with an order of this Court.

On the merits, counsel for the first and second respondents stated, that, the retrospective application of the order passed in CC04-20 was limited. Further, the Court had the power to limit the retrospective application in terms of section 175(6)(b) of the Constitution. Therefore, the provisions of section 147 could not have been breached, so his submissions went.

Counsel for the third respondent also put up ardent opposition to the application.

Essentially, he took three points in response to counsel for the applicant's submissions. He prefaced those points by stating that there are three broad steps in the enactment of a law. These are:

(i) The consideration of a Bill by the National Assembly;

(ii) The consideration of the same Bill by the Senate;

(iii) The President's assent to the Bill as the last step;

Counsel for the third respondent's first point was, that, the Presidential assent to the Bill, in 2017, was not set aside by this Court. Therefore, there was no failure by the third respondent to “re-gazette” the Bill as the applicant had pleaded.

His second point was that when Parliament was dissolved, in July 2018, there was no Constitution Amendment (No.1) Bill. It had become an Act. This meant, that, the declaration by this Court could not have affected the status of that Act as it had limited retrospective effect.

Counsel for the third respondent's third point was, that, section 147 of the Constitution does not impose an obligation on the third respondent. In the absence of such, there cannot be a constitutional obligation that the third respondent breached.

All the respondents prayed for the dismissal of the application.

Mr Zhuwarara, the amicus curiae, made submissions last.

His first submission was, that, the moment the applicant adverted to violations in terms of section 85 of the Constitution, he was obliged to allege that a fundamental right was infringed and to seek relief that is consistent with Chapter 4 of the Constitution. He further submitted, that, the applicant failed to base his relief on Chapter 4 of the Constitution and that ought to be the end of the matter.

On the merits of the application, the amicus submitted, that, judgments of the Constitutional Court are final. On this basis, the judgment in CC04-20 could not be revisited.

While agreeing that the Constitutional Court cannot pass unconstitutional judgments, he stated that this was not the situation in casu.

Proceeding from this point, he added, that, in terms of section 175(6)(b) of the Constitution, this Court passes corrective orders. For this reason, the order of this Court, and the subsequent passage of the Bill by the Senate, did not violate the Constitution.

Mr Zhuwarara concluded his submissions by stating, that, the applicant's rights, in section 56 of the Constitution, could not have been violated because the applicant failed to identify a similarly positioned person who was afforded a favour.

The respondents raised several preliminary objections in these proceedings. However, in their oral submissions they emphasized and focused only on the following:

(a) That, there is no cause of action against the respondents.

(b) That, it was improper to cite the first respondent in an application under section 167(2)(d) of the Constitution.

While counsel for the first and second respondents is of the view, that, there cannot be any perceivable cause of action against the respondents as they were acting in accordance with an order of this Court, counsel for the third respondent considers the cause of action to be unclear.

Without exception, the Rules require an applicant to set out all essential averments that are necessary to clarify and motivate the cause of action: see Rule 14(4)(d) of the Constitutional Court Rules.

See also Apex Holdings (Pvt) Ltd (in liquidation) & Anor v Venetian Blinds Specialists CC11-19…,.

This rule is in line with the salutary principle of pleading, which has become the gold standard in our jurisdiction, that, an application stands or falls on the founding affidavit: see Kufa & Anor v President of the Republic of Zimbabwe & Ors CC22-17…,.; Chani v Justice Hlekani Mwayera & Ors CC02-20…,.; Chironga & Anor v Minister of Justice, Legal & Parliamentary Affairs CC14-20…,.; and Mpofu v ZERA & Ors CC13-20…,.

A failure to set out the cause of action entitles a respondent to seek the dismissal of an application as of right: see HERBSTEIN and Van WINSEN “The Civil Practice of the High Courts and the Supreme Courts of Appeal of South Africa” 5th Ed. Vol 1…,.

The requirements of an application made in terms section 167(2)(d) of the Constitution are that one must identify a functionary [the President/Parliament] and a constitutional obligation that the functionary is alleged to have failed to fulfil: see Chirambwe v President of the Republic of Zimbabwe & Ors CC04–21…,. and Mliswa v Parliament of the Republic of Zimbabwe CC02–21…,.

It automatically follows, that, the applicant cannot sustain a cause of action against the first respondent because the first respondent is not a functionary against whom an application in terms section 167(2)(d) of the Constitution can be made.

Thus, the case as against the first respondent stands to be struck off without further ado....,.

1. The claim against the first respondent is struck out.

1. The claim against the first respondent is struck out.

1. The claim against the first respondent is struck out.

The applicant is a Member of Parliament representing the Mutare Central Constituency. He filed this application, essentially, in terms of section 167(2)(d) of the Constitution of Zimbabwe, 2013 (hereafter 'the Constitution') albeit with passing references to section 85 of the Constitution. In fact, in his answering affidavit, the applicant made it abundantly clear that the application was indeed solely in terms of section 167(2)(d) of the Constitution.

Thus, any references to section 85 of the Constitution shall be taken merely as means to bolster the principal cause of action, and not as a separate cause of action.

Initially, the applicant sought an order in the terms set out below:

“IT IS HEREBY DECLARED THAT:

1. The passage of Constitutional Amendment Bill (No.1) of 2017 in Parliament on the 4th of May 2021 be and is hereby set aside on the basis that the bill had lapsed in July of 2018 and therefore its passage was in breach of section 147 of the Constitution of Zimbabwe:

Therefore:

(i) The actions of Parliament, in passing Constitutional Amendment Bill No.1 of 2017, are in breach of the provisions of section 147 of the Constitution of Zimbabwe.

(ii) The actions of the President of the Republic of Zimbabwe, in assenting to Constitutional Amendment Bill No.1, are in breach of section 147 of the Constitution of Zimbabwe.

(iii) Constitutional Amendment No.1 Act of 2017, gazetted on the 7th of September 2017, be and is hereby set aside.

2. That, the judgment of the Constitutional Court, in the case of Innocent Gonese & Jessie Majome v The Speaker of Parliament & Others CC04-20, directing that part of the disposition of the Constitutional Court directing Senate passes Constitutional Amendment Bill No.1, within 180 days from the declaration of invalidity, be and is hereby declared to be a nullity in breach of section 147 of the Constitution of Zimbabwe.

3. 2nd Respondent must pay cost (sic) of suit.”

I have deliberately used the word “initially” for reasons that will shortly become apparent.

The application relates to the enactment of Constitution of Zimbabwe Amendment (No.1) Act 2017. The relevant facts are all common cause:

On 25 July 2017, the National Assembly passed Constitutional Amendment (No.1) Bill 2017. Thereafter, on 1 August 2017, the Senate purported to pass the same Bill. On 7 September 2017, the President assented to the Bill. The Bill was published in the Government Gazette, promulgated as law, and thereafter became known as Constitution of Zimbabwe Amendment (No.1) Act, 2017.

It is crucial to note, that, a few days prior to the President's assent, the applicant, and a fellow Member of Parliament, had filed an application, under case number CCZ57/17, in terms of section 167(2)(d) of the Constitution, alleging that the second respondent had failed to fulfil a constitutional obligation.

Subsequent to the promulgation of Constitution of Zimbabwe Amendment (No.1) Act 2017, the applicant, together with his fellow Member of Parliament aforesaid, filed another constitutional application, under case number CCZ58/17, on 13 September 2017. They alleged that the second respondent had failed to fulfil a constitutional obligation by its passing of a constitutional bill in the absence of a two-thirds majority as required by section 328 of the Constitution.

The applications under CCZ57/17 and CCZ58/17 were consolidated and heard on 31 January 2018. After hearing the parties submissions in respect of those applications, this Court reserved its judgment.

Pending the delivery of the judgment, the country underwent harmonised general elections on 30 July 2018. Thus, Parliament stood dissolved at midnight on 29 July 2018, the day before the first polling day of the general election in terms of section 143 of the Constitution.

On 31 March 2020, this Court passed judgment in respect of the applications under CCZ57/17 and CCZ58/17. That is, the judgment of Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 (hereafter referred to as 'CC04-20').

The operative part of that judgment reads as follows:

“1. It is declared that the passing of Constitutional Amendment Bill (No.1) of 2017 by the Senate on 01 August 2017 was inconsistent with the provisions of section 328(5) of the Constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House. Constitutional Amendment Bill (No.1) of 2017 is declared invalid to the extent of the inconsistency. The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).

Accordingly, the following order is made –

(a) The proceedings in the Senate, on 01 August 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and are hereby set aside for the reason that a two-thirds majority vote was not reached in that House.

(b) The Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within one hundred and eighty days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No.1) of 2017 in paragraph (1) shall become final.

2. The applicants allegation, that, there was no vote in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

3. The applicants allegation, that a two-thirds majority was not reached in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

4. There is no order as to costs.”

For reasons that are not pertinent to the present application, the Senate failed to conduct another vote within the period that was set out in paragraph 1(b) of the judgment under CC04-20.

As a result, the first and second respondents, and the Speaker of the National Assembly, implored this Court, by application, to extend the period that had been set out for conducting a second vote under case number CCZ11/20. The application was heard on 10 November 2020 and judgment was reserved.

On 25 February 2021, judgment was delivered in that application as the judgment of President of the Senate & Ors v Gonese & Ors CC01-21 (hereafter referred to as 'CC01-21'). The order passed in CC01-21 reads:

“Accordingly, I make the following order:

1. The application is granted.

2. The period referred to in para (b) of the order handed down on 31 March 2020 is extended by a further ninety days from the date of this order.

3. Each party shall bear its own costs.”

I digress briefly to foreshadow that I will advert to more comprehensively later in this judgment.

In view of the above order, the Senate conducted another vote on the Constitutional Amendment (No.1) Bill of 2017.

On 4 May 2021, it passed the Constitutional Amendment Bill (No.1).

The applicant contends, that, the passage of the Bill in the manner aforesaid, on 4 May 2021, is unconstitutional.

He principally considers the second and third respondents to have failed to fulfil constitutional obligations in the passage of the Bill contrary to the provisions of section 147 of the Constitution.

The applicant also considers the impugned conduct of the respondents to have been accentuated by the simultaneous violation of his rights under section 56(1) of the Constitution.

However, this last contention does not appear to have been persisted in with much vigour and conviction considering that the applicant stated, unambiguously, that, his application was solely in terms of section 167(2)(d) of the Constitution. In fact, the amicus considers this as the applicant's “fringe” contention.

At any rate, in my view, there would be no need to invoke section 56(1) of the Constitution where the cause of action is one of failure to fulfil a constitutional obligation as that situation is specifically provided for sufficiently in section 167(2)(d) of the Constitution, and requires no additional colouring through such invocation: compare Central African Building Society v Stone & Ors SC15-21.

All the respondents opposed the application.

They deny that their conduct, in the passage of Constitutional Amendment (No.1) Bill of 2017, was in violation of section 147 of the Constitution. Instead, they contend, that, their actions are predicated on a valid order of this Court handed down under CC04-20. They also maintain that none of the applicant's rights was violated by their conduct....,.

On 15 March, the parties then advanced their oral submissions in respect of the application.

Counsel for the applicant stated, that, the critical issue for determination was whether the passage of Constitution of Zimbabwe Amendment (No.1) Act of 2017, on 4 May 2021, breached section 147 of the Constitution.

To him, the crucial thing was to assess the status of the Bill as of 29 July 2018, which is the date on which Parliament stood dissolved.

The date the judgment of this Court, in Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 was delivered was immaterial.

Citing decisions of this Court and the Supreme Court, counsel for the applicant stated, that, the order of this Court in CC04-20 merely confirmed the invalidity of Constitution of Zimbabwe Amendment (No.1) Act, which occurred in August 2017 when that Act was purportedly passed. It was, therefore, not a licence for the Senate to violate section 147 of the Constitution.

Accordingly, he submitted, that, Constitution Amendment (No.1) Bill lapsed when Parliament was dissolved on 29 July 2018.

In respect of the allegations that the applicant's constitutional rights were violated by the conduct of the respondents, counsel for the applicant submitted, that, section 56(1) of the Constitution does not qualify the nature of protection afforded by the section. In his view, the subsection had the same meaning as the equivalent provision under the previous Constitution of Zimbabwe.

Regarding the relief sought by the applicant, counsel for the applicant emphasised that the applicant simply sought a declaration that the passage of Constitution of Zimbabwe Amendment (No.1) Act, on 5 May 2021, was in breach of section 147 of the Constitution.

He formally abandoned the second paragraph of the applicant's draft order set out above.

He added, that, should the Court grant the declaratory relief sought, the order should not have retrospective effect.

Counsel for the applicant also abandoned his preliminary challenges to the authorities of the deponents to the first and second as well as the third respondent's opposing affidavits.

Counsel for the first and second respondents indicated, that, he was persisting with the preliminary points that he raised:

(i) Firstly, he submitted, that, the Court had no jurisdiction as the applicant had improperly joined the President of the Senate to the President and Parliament in an application under section 167(2)(d) contrary to the judgment of this Court in Mliswa v Parliament of the Republic of Zimbabwe CC02-21.

(ii) Secondly, he submitted, that, the applicant had no cause of action because the conduct of the respondents was in compliance with an order of this Court.

On the merits, counsel for the first and second respondents stated, that, the retrospective application of the order passed in CC04-20 was limited. Further, the Court had the power to limit the retrospective application in terms of section 175(6)(b) of the Constitution. Therefore, the provisions of section 147 could not have been breached, so his submissions went.

Counsel for the third respondent also put up ardent opposition to the application.

Essentially, he took three points in response to counsel for the applicant's submissions. He prefaced those points by stating that there are three broad steps in the enactment of a law. These are:

(i) The consideration of a Bill by the National Assembly;

(ii) The consideration of the same Bill by the Senate;

(iii) The President's assent to the Bill as the last step;

Counsel for the third respondent's first point was, that, the Presidential assent to the Bill, in 2017, was not set aside by this Court. Therefore, there was no failure by the third respondent to “re-gazette” the Bill as the applicant had pleaded.

His second point was that when Parliament was dissolved, in July 2018, there was no Constitution Amendment (No.1) Bill. It had become an Act. This meant, that, the declaration by this Court could not have affected the status of that Act as it had limited retrospective effect.

Counsel for the third respondent's third point was, that, section 147 of the Constitution does not impose an obligation on the third respondent. In the absence of such, there cannot be a constitutional obligation that the third respondent breached.

All the respondents prayed for the dismissal of the application.

Mr Zhuwarara, the amicus curiae, made submissions last.

His first submission was, that, the moment the applicant adverted to violations in terms of section 85 of the Constitution, he was obliged to allege that a fundamental right was infringed and to seek relief that is consistent with Chapter 4 of the Constitution. He further submitted, that, the applicant failed to base his relief on Chapter 4 of the Constitution and that ought to be the end of the matter.

On the merits of the application, the amicus submitted, that, judgments of the Constitutional Court are final. On this basis, the judgment in CC04-20 could not be revisited.

While agreeing that the Constitutional Court cannot pass unconstitutional judgments, he stated that this was not the situation in casu.

Proceeding from this point, he added, that, in terms of section 175(6)(b) of the Constitution, this Court passes corrective orders. For this reason, the order of this Court, and the subsequent passage of the Bill by the Senate, did not violate the Constitution.

Mr Zhuwarara concluded his submissions by stating, that, the applicant's rights, in section 56 of the Constitution, could not have been violated because the applicant failed to identify a similarly positioned person who was afforded a favour....,.

The foremost issue arising for determination is whether or not the Constitution of Zimbabwe Amendment (No.1) Act 2017 was an Act of Parliament when Parliament was dissolved in 2018.

In resolving this issue, one must accept, that, even though the applicant abandoned the part of his draft relief that would have nullified the decision of this Court in CC04–20, which abandonment suggests that he no longer wishes to impugn that decision, the determination of this issue is inexorably tied to it.

By no stretch of ingenuity can the applicant circumvent that decision in order to succeed in this application.

Thus, the resolution of the main issue, perforce, demands one to also relate to the order in CC04-20, in my view.

All the applicant's other contentions and claims are ultimately premised on this plank; whether it is the President's alleged failure to “re-gazette” the 'Bill' or Parliament voting on a “lapsed Bill” or the alleged failure by both Parliament and the President to discharge Constitutional obligations ostensibly imposed by section 147 of the Constitution.

It is perhaps opportune at this juncture to dispose of the section 147 of the Constitution contentions.

I am in agreement with the submissions of the respondents, that, section 147 of the Constitution does not impose any obligations upon Parliament or the President. It only provides for the fate of Bills, motions, petitions, and other business which might be pending before the dissolution of Parliament. It does not require Parliament or the President to do anything. It takes effect by operation of law. It is thus applicable to any person, be it a Minister, President, member of Parliament, member of the general public who might have business or a petition pending before Parliament.

It simply declares that such business lapses, without imposing any obligation on anyone.

But, even more significantly, to found exclusive jurisdiction in terms of section 167(2)(d) of the Constitution, the conduct complained of must not only be clearly identified but it must be a duty specifically imposed on Parliament or the President: see, for example, Von Abo v Government of the Republic of South Africa 2009 (2) SA 526.

Furthermore, the obligation concerned must not be one shared by various other stakeholders such as is apparent in section 147 of the Constitution, if at all that section imposes any duties; which it has been shown above it does not.

In Economic Freedom Fighters v Speaker of the National Assembly & Ors 2016 ZACC 11, the South African Constitutional Court stated:

“An alleged breach of a constitutional obligation must relate to an obligation that is specifically imposed on the President or Parliament. An obligation shared with other organs of State will always fail the section 167(4)(e) test…,.” (equivalent to our section 167(2)(d)).

In this case, the applicant has attacked Parliament, the President, and even this Court for allegedly breaching section 147 of the Constitution.

He cannot, therefore, invoke section 167(2)(d) of the Constitution in a matter impugning the conduct of the legislature, the executive, and even the judiciary for breach of section 147 of the Constitution.

Any constitutional or statutory provision is dependent on the existence of specific juridical facts before it can come into operation.

Any constitutional or statutory provision is dependent on the existence of specific juridical facts before it can come into operation.

The applicant is a Member of Parliament representing the Mutare Central Constituency. He filed this application, essentially, in terms of section 167(2)(d) of the Constitution of Zimbabwe, 2013 (hereafter 'the Constitution') albeit with passing references to section 85 of the Constitution. In fact, in his answering affidavit, the applicant made it abundantly clear that the application was indeed solely in terms of section 167(2)(d) of the Constitution.

Thus, any references to section 85 of the Constitution shall be taken merely as means to bolster the principal cause of action, and not as a separate cause of action.

Initially, the applicant sought an order in the terms set out below:

“IT IS HEREBY DECLARED THAT:

1. The passage of Constitutional Amendment Bill (No.1) of 2017 in Parliament on the 4th of May 2021 be and is hereby set aside on the basis that the bill had lapsed in July of 2018 and therefore its passage was in breach of section 147 of the Constitution of Zimbabwe:

Therefore:

(i) The actions of Parliament, in passing Constitutional Amendment Bill No.1 of 2017, are in breach of the provisions of section 147 of the Constitution of Zimbabwe.

(ii) The actions of the President of the Republic of Zimbabwe, in assenting to Constitutional Amendment Bill No.1, are in breach of section 147 of the Constitution of Zimbabwe.

(iii) Constitutional Amendment No.1 Act of 2017, gazetted on the 7th of September 2017, be and is hereby set aside.

2. That, the judgment of the Constitutional Court, in the case of Innocent Gonese & Jessie Majome v The Speaker of Parliament & Others CC04-20, directing that part of the disposition of the Constitutional Court directing Senate passes Constitutional Amendment Bill No.1, within 180 days from the declaration of invalidity, be and is hereby declared to be a nullity in breach of section 147 of the Constitution of Zimbabwe.

3. 2nd Respondent must pay cost (sic) of suit.”

I have deliberately used the word “initially” for reasons that will shortly become apparent.

The application relates to the enactment of Constitution of Zimbabwe Amendment (No.1) Act 2017. The relevant facts are all common cause:

On 25 July 2017, the National Assembly passed Constitutional Amendment (No.1) Bill 2017. Thereafter, on 1 August 2017, the Senate purported to pass the same Bill. On 7 September 2017, the President assented to the Bill. The Bill was published in the Government Gazette, promulgated as law, and thereafter became known as Constitution of Zimbabwe Amendment (No.1) Act, 2017.

It is crucial to note, that, a few days prior to the President's assent, the applicant, and a fellow Member of Parliament, had filed an application, under case number CCZ57/17, in terms of section 167(2)(d) of the Constitution, alleging that the second respondent had failed to fulfil a constitutional obligation.

Subsequent to the promulgation of Constitution of Zimbabwe Amendment (No.1) Act 2017, the applicant, together with his fellow Member of Parliament aforesaid, filed another constitutional application, under case number CCZ58/17, on 13 September 2017. They alleged that the second respondent had failed to fulfil a constitutional obligation by its passing of a constitutional bill in the absence of a two-thirds majority as required by section 328 of the Constitution.

The applications under CCZ57/17 and CCZ58/17 were consolidated and heard on 31 January 2018. After hearing the parties submissions in respect of those applications, this Court reserved its judgment.

Pending the delivery of the judgment, the country underwent harmonised general elections on 30 July 2018. Thus, Parliament stood dissolved at midnight on 29 July 2018, the day before the first polling day of the general election in terms of section 143 of the Constitution.

On 31 March 2020, this Court passed judgment in respect of the applications under CCZ57/17 and CCZ58/17. That is, the judgment of Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 (hereafter referred to as 'CC04-20').

The operative part of that judgment reads as follows:

“1. It is declared that the passing of Constitutional Amendment Bill (No.1) of 2017 by the Senate on 01 August 2017 was inconsistent with the provisions of section 328(5) of the Constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House. Constitutional Amendment Bill (No.1) of 2017 is declared invalid to the extent of the inconsistency. The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).

Accordingly, the following order is made –

(a) The proceedings in the Senate, on 01 August 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and are hereby set aside for the reason that a two-thirds majority vote was not reached in that House.

(b) The Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within one hundred and eighty days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No.1) of 2017 in paragraph (1) shall become final.

2. The applicants allegation, that, there was no vote in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

3. The applicants allegation, that a two-thirds majority was not reached in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

4. There is no order as to costs.”

For reasons that are not pertinent to the present application, the Senate failed to conduct another vote within the period that was set out in paragraph 1(b) of the judgment under CC04-20.

As a result, the first and second respondents, and the Speaker of the National Assembly, implored this Court, by application, to extend the period that had been set out for conducting a second vote under case number CCZ11/20. The application was heard on 10 November 2020 and judgment was reserved.

On 25 February 2021, judgment was delivered in that application as the judgment of President of the Senate & Ors v Gonese & Ors CC01-21 (hereafter referred to as 'CC01-21'). The order passed in CC01-21 reads:

“Accordingly, I make the following order:

1. The application is granted.

2. The period referred to in para (b) of the order handed down on 31 March 2020 is extended by a further ninety days from the date of this order.

3. Each party shall bear its own costs.”

I digress briefly to foreshadow that I will advert to more comprehensively later in this judgment.

In view of the above order, the Senate conducted another vote on the Constitutional Amendment (No.1) Bill of 2017.

On 4 May 2021, it passed the Constitutional Amendment Bill (No.1).

The applicant contends, that, the passage of the Bill in the manner aforesaid, on 4 May 2021, is unconstitutional.

He principally considers the second and third respondents to have failed to fulfil constitutional obligations in the passage of the Bill contrary to the provisions of section 147 of the Constitution.

The applicant also considers the impugned conduct of the respondents to have been accentuated by the simultaneous violation of his rights under section 56(1) of the Constitution.

However, this last contention does not appear to have been persisted in with much vigour and conviction considering that the applicant stated, unambiguously, that, his application was solely in terms of section 167(2)(d) of the Constitution. In fact, the amicus considers this as the applicant's “fringe” contention.

At any rate, in my view, there would be no need to invoke section 56(1) of the Constitution where the cause of action is one of failure to fulfil a constitutional obligation as that situation is specifically provided for sufficiently in section 167(2)(d) of the Constitution, and requires no additional colouring through such invocation: compare Central African Building Society v Stone & Ors SC15-21.

All the respondents opposed the application.

They deny that their conduct, in the passage of Constitutional Amendment (No.1) Bill of 2017, was in violation of section 147 of the Constitution. Instead, they contend, that, their actions are predicated on a valid order of this Court handed down under CC04-20. They also maintain that none of the applicant's rights was violated by their conduct....,.

On 15 March, the parties then advanced their oral submissions in respect of the application.

Counsel for the applicant stated, that, the critical issue for determination was whether the passage of Constitution of Zimbabwe Amendment (No.1) Act of 2017, on 4 May 2021, breached section 147 of the Constitution.

To him, the crucial thing was to assess the status of the Bill as of 29 July 2018, which is the date on which Parliament stood dissolved.

The date the judgment of this Court, in Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 was delivered was immaterial.

Citing decisions of this Court and the Supreme Court, counsel for the applicant stated, that, the order of this Court in CC04-20 merely confirmed the invalidity of Constitution of Zimbabwe Amendment (No.1) Act, which occurred in August 2017 when that Act was purportedly passed. It was, therefore, not a licence for the Senate to violate section 147 of the Constitution.

Accordingly, he submitted, that, Constitution Amendment (No.1) Bill lapsed when Parliament was dissolved on 29 July 2018.

In respect of the allegations that the applicant's constitutional rights were violated by the conduct of the respondents, counsel for the applicant submitted, that, section 56(1) of the Constitution does not qualify the nature of protection afforded by the section. In his view, the subsection had the same meaning as the equivalent provision under the previous Constitution of Zimbabwe.

Regarding the relief sought by the applicant, counsel for the applicant emphasised that the applicant simply sought a declaration that the passage of Constitution of Zimbabwe Amendment (No.1) Act, on 5 May 2021, was in breach of section 147 of the Constitution.

He formally abandoned the second paragraph of the applicant's draft order set out above.

He added, that, should the Court grant the declaratory relief sought, the order should not have retrospective effect.

Counsel for the applicant also abandoned his preliminary challenges to the authorities of the deponents to the first and second as well as the third respondent's opposing affidavits.

Counsel for the first and second respondents indicated, that, he was persisting with the preliminary points that he raised:

(i) Firstly, he submitted, that, the Court had no jurisdiction as the applicant had improperly joined the President of the Senate to the President and Parliament in an application under section 167(2)(d) contrary to the judgment of this Court in Mliswa v Parliament of the Republic of Zimbabwe CC02-21.

(ii) Secondly, he submitted, that, the applicant had no cause of action because the conduct of the respondents was in compliance with an order of this Court.

On the merits, counsel for the first and second respondents stated, that, the retrospective application of the order passed in CC04-20 was limited. Further, the Court had the power to limit the retrospective application in terms of section 175(6)(b) of the Constitution. Therefore, the provisions of section 147 could not have been breached, so his submissions went.

Counsel for the third respondent also put up ardent opposition to the application.

Essentially, he took three points in response to counsel for the applicant's submissions. He prefaced those points by stating that there are three broad steps in the enactment of a law. These are:

(i) The consideration of a Bill by the National Assembly;

(ii) The consideration of the same Bill by the Senate;

(iii) The President's assent to the Bill as the last step;

Counsel for the third respondent's first point was, that, the Presidential assent to the Bill, in 2017, was not set aside by this Court. Therefore, there was no failure by the third respondent to “re-gazette” the Bill as the applicant had pleaded.

His second point was that when Parliament was dissolved, in July 2018, there was no Constitution Amendment (No.1) Bill. It had become an Act. This meant, that, the declaration by this Court could not have affected the status of that Act as it had limited retrospective effect.

Counsel for the third respondent's third point was, that, section 147 of the Constitution does not impose an obligation on the third respondent. In the absence of such, there cannot be a constitutional obligation that the third respondent breached.

All the respondents prayed for the dismissal of the application.

Mr Zhuwarara, the amicus curiae, made submissions last.

His first submission was, that, the moment the applicant adverted to violations in terms of section 85 of the Constitution, he was obliged to allege that a fundamental right was infringed and to seek relief that is consistent with Chapter 4 of the Constitution. He further submitted, that, the applicant failed to base his relief on Chapter 4 of the Constitution and that ought to be the end of the matter.

On the merits of the application, the amicus submitted, that, judgments of the Constitutional Court are final. On this basis, the judgment in CC04-20 could not be revisited.

While agreeing that the Constitutional Court cannot pass unconstitutional judgments, he stated that this was not the situation in casu.

Proceeding from this point, he added, that, in terms of section 175(6)(b) of the Constitution, this Court passes corrective orders. For this reason, the order of this Court, and the subsequent passage of the Bill by the Senate, did not violate the Constitution.

Mr Zhuwarara concluded his submissions by stating, that, the applicant's rights, in section 56 of the Constitution, could not have been violated because the applicant failed to identify a similarly positioned person who was afforded a favour....,.

The foremost issue arising for determination is whether or not the Constitution of Zimbabwe Amendment (No.1) Act 2017 was an Act of Parliament when Parliament was dissolved in 2018.

In resolving this issue, one must accept, that, even though the applicant abandoned the part of his draft relief that would have nullified the decision of this Court in CC04–20, which abandonment suggests that he no longer wishes to impugn that decision, the determination of this issue is inexorably tied to it.

By no stretch of ingenuity can the applicant circumvent that decision in order to succeed in this application.

Thus, the resolution of the main issue, perforce, demands one to also relate to the order in CC04-20, in my view.

All the applicant's other contentions and claims are ultimately premised on this plank; whether it is the President's alleged failure to “re-gazette” the 'Bill' or Parliament voting on a “lapsed Bill” or the alleged failure by both Parliament and the President to discharge Constitutional obligations ostensibly imposed by section 147 of the Constitution.

It is perhaps opportune at this juncture to dispose of the section 147 of the Constitution contentions.

I am in agreement with the submissions of the respondents, that, section 147 of the Constitution does not impose any obligations upon Parliament or the President. It only provides for the fate of Bills, motions, petitions, and other business which might be pending before the dissolution of Parliament. It does not require Parliament or the President to do anything. It takes effect by operation of law. It is thus applicable to any person, be it a Minister, President, member of Parliament, member of the general public who might have business or a petition pending before Parliament.

It simply declares that such business lapses, without imposing any obligation on anyone.

But, even more significantly, to found exclusive jurisdiction in terms of section 167(2)(d) of the Constitution, the conduct complained of must not only be clearly identified but it must be a duty specifically imposed on Parliament or the President: see, for example, Von Abo v Government of the Republic of South Africa 2009 (2) SA 526.

Furthermore, the obligation concerned must not be one shared by various other stakeholders such as is apparent in section 147 of the Constitution, if at all that section imposes any duties; which it has been shown above it does not.

In Economic Freedom Fighters v Speaker of the National Assembly & Ors 2016 ZACC 11, the South African Constitutional Court stated:

“An alleged breach of a constitutional obligation must relate to an obligation that is specifically imposed on the President or Parliament. An obligation shared with other organs of State will always fail the section 167(4)(e) test…,.” (equivalent to our section 167(2)(d)).

In this case, the applicant has attacked Parliament, the President, and even this Court for allegedly breaching section 147 of the Constitution.

He cannot, therefore, invoke section 167(2)(d) of the Constitution in a matter impugning the conduct of the legislature, the executive, and even the judiciary for breach of section 147 of the Constitution.

The applicant argues, that, Constitutional Amendment Bill (No.1) of 2017 lapsed upon the dissolution of Parliament in July 2018, and anchors this contention on section 147 of the Constitution. That section reads:

“147 Lapsing of Bills, motions, petitions and other business on dissolution of Parliament

On the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition, and other business lapses.”

Any constitutional or statutory provision is dependent on the existence of specific juridical facts before it can come into operation.

For section 147 of the Constitution to be invoked and set off any particular legal effect on Bills, specific juridical facts must be found to exist. These are:

(i) Parliament must have been dissolved.

(ii) There must have been proceedings before it. In its widest sense, the term 'proceedings' includes matters connected with, or ancillary to, the formal transaction of business in Parliament: see Smith v Mutasa 1989 (3) ZLR 183 (S)…, and also ERSKINE MAY's Treatise on the Law, Privileges and Usages of Parliament, 25th Ed, 2019…,.

(iii) The proceedings must have been pending at the time of dissolution.

(iv) There must have been a Bill. Section 332 of the Constitution states that “Constitutional Bill” means a Bill, which, if enacted, would have the effect of amending any of the provisions of the Constitution.

The status of the Bill in question must first be assessed at the time Parliament was dissolved. This is the only way that one can tell whether the Bill lapsed when Parliament was dissolved.

Turning to the necessary facts which trigger the application of section 147 of the Constitution.

All the parties are in agreement, that, Parliament was dissolved. However, I find that there were no pending proceedings in respect of Constitutional Amendment Bill (No.1) of 2017 at the time of dissolution nor was that Bill still in existence as such.

That Bill had become law; Constitution of Zimbabwe Amendment (No.1) Act (Act 10 of 2017).

The applicant accepts this fact.

The respondents also accept that the Bill became law on 7 September 2017 - prior to the dissolution of Parliament.

In the absence of the necessary facts envisaged by section 147 of the Constitution, Constitutional Amendment Bill (No.1) could not have lapsed since it was no longer pending. There also could not have been any proceedings in respect of that Bill.

Suffice to mention, that, the question of the validity of the resultant Constitution of Zimbabwe Amendment (No.1) Act does not arise at the point of dissolution of Parliament. This is because, upon the dissolution of Parliament, that Act was presumed to be constitutional and valid: see In Re: Prosecutor-General of Zimbabwe on his Constitutional Independence and Protection from Direction and Control 2017 (1) ZLR (CC)…,.

It is common cause, that, Constitution of Zimbabwe Amendment (No.1) Act was subsequently nullified by this Court on 30 March 2020.

The applicant is a Member of Parliament representing the Mutare Central Constituency. He filed this application, essentially, in terms of section 167(2)(d) of the Constitution of Zimbabwe, 2013 (hereafter 'the Constitution') albeit with passing references to section 85 of the Constitution. In fact, in his answering affidavit, the applicant made it abundantly clear that the application was indeed solely in terms of section 167(2)(d) of the Constitution.

Thus, any references to section 85 of the Constitution shall be taken merely as means to bolster the principal cause of action, and not as a separate cause of action.

Initially, the applicant sought an order in the terms set out below:

“IT IS HEREBY DECLARED THAT:

1. The passage of Constitutional Amendment Bill (No.1) of 2017 in Parliament on the 4th of May 2021 be and is hereby set aside on the basis that the bill had lapsed in July of 2018 and therefore its passage was in breach of section 147 of the Constitution of Zimbabwe:

Therefore:

(i) The actions of Parliament, in passing Constitutional Amendment Bill No.1 of 2017, are in breach of the provisions of section 147 of the Constitution of Zimbabwe.

(ii) The actions of the President of the Republic of Zimbabwe, in assenting to Constitutional Amendment Bill No.1, are in breach of section 147 of the Constitution of Zimbabwe.

(iii) Constitutional Amendment No.1 Act of 2017, gazetted on the 7th of September 2017, be and is hereby set aside.

2. That, the judgment of the Constitutional Court, in the case of Innocent Gonese & Jessie Majome v The Speaker of Parliament & Others CC04-20, directing that part of the disposition of the Constitutional Court directing Senate passes Constitutional Amendment Bill No.1, within 180 days from the declaration of invalidity, be and is hereby declared to be a nullity in breach of section 147 of the Constitution of Zimbabwe.

3. 2nd Respondent must pay cost (sic) of suit.”

I have deliberately used the word “initially” for reasons that will shortly become apparent.

The application relates to the enactment of Constitution of Zimbabwe Amendment (No.1) Act 2017. The relevant facts are all common cause:

On 25 July 2017, the National Assembly passed Constitutional Amendment (No.1) Bill 2017. Thereafter, on 1 August 2017, the Senate purported to pass the same Bill. On 7 September 2017, the President assented to the Bill. The Bill was published in the Government Gazette, promulgated as law, and thereafter became known as Constitution of Zimbabwe Amendment (No.1) Act, 2017.

It is crucial to note, that, a few days prior to the President's assent, the applicant, and a fellow Member of Parliament, had filed an application, under case number CCZ57/17, in terms of section 167(2)(d) of the Constitution, alleging that the second respondent had failed to fulfil a constitutional obligation.

Subsequent to the promulgation of Constitution of Zimbabwe Amendment (No.1) Act 2017, the applicant, together with his fellow Member of Parliament aforesaid, filed another constitutional application, under case number CCZ58/17, on 13 September 2017. They alleged that the second respondent had failed to fulfil a constitutional obligation by its passing of a constitutional bill in the absence of a two-thirds majority as required by section 328 of the Constitution.

The applications under CCZ57/17 and CCZ58/17 were consolidated and heard on 31 January 2018. After hearing the parties submissions in respect of those applications, this Court reserved its judgment.

Pending the delivery of the judgment, the country underwent harmonised general elections on 30 July 2018. Thus, Parliament stood dissolved at midnight on 29 July 2018, the day before the first polling day of the general election in terms of section 143 of the Constitution.

On 31 March 2020, this Court passed judgment in respect of the applications under CCZ57/17 and CCZ58/17. That is, the judgment of Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 (hereafter referred to as 'CC04-20').

The operative part of that judgment reads as follows:

“1. It is declared that the passing of Constitutional Amendment Bill (No.1) of 2017 by the Senate on 01 August 2017 was inconsistent with the provisions of section 328(5) of the Constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House. Constitutional Amendment Bill (No.1) of 2017 is declared invalid to the extent of the inconsistency. The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).

Accordingly, the following order is made –

(a) The proceedings in the Senate, on 01 August 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and are hereby set aside for the reason that a two-thirds majority vote was not reached in that House.

(b) The Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within one hundred and eighty days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No.1) of 2017 in paragraph (1) shall become final.

2. The applicants allegation, that, there was no vote in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

3. The applicants allegation, that a two-thirds majority was not reached in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

4. There is no order as to costs.”

For reasons that are not pertinent to the present application, the Senate failed to conduct another vote within the period that was set out in paragraph 1(b) of the judgment under CC04-20.

As a result, the first and second respondents, and the Speaker of the National Assembly, implored this Court, by application, to extend the period that had been set out for conducting a second vote under case number CCZ11/20. The application was heard on 10 November 2020 and judgment was reserved.

On 25 February 2021, judgment was delivered in that application as the judgment of President of the Senate & Ors v Gonese & Ors CC01-21 (hereafter referred to as 'CC01-21'). The order passed in CC01-21 reads:

“Accordingly, I make the following order:

1. The application is granted.

2. The period referred to in para (b) of the order handed down on 31 March 2020 is extended by a further ninety days from the date of this order.

3. Each party shall bear its own costs.”

I digress briefly to foreshadow that I will advert to more comprehensively later in this judgment.

In view of the above order, the Senate conducted another vote on the Constitutional Amendment (No.1) Bill of 2017.

On 4 May 2021, it passed the Constitutional Amendment Bill (No.1).

The applicant contends, that, the passage of the Bill in the manner aforesaid, on 4 May 2021, is unconstitutional.

He principally considers the second and third respondents to have failed to fulfil constitutional obligations in the passage of the Bill contrary to the provisions of section 147 of the Constitution.

The applicant also considers the impugned conduct of the respondents to have been accentuated by the simultaneous violation of his rights under section 56(1) of the Constitution.

However, this last contention does not appear to have been persisted in with much vigour and conviction considering that the applicant stated, unambiguously, that, his application was solely in terms of section 167(2)(d) of the Constitution. In fact, the amicus considers this as the applicant's “fringe” contention.

At any rate, in my view, there would be no need to invoke section 56(1) of the Constitution where the cause of action is one of failure to fulfil a constitutional obligation as that situation is specifically provided for sufficiently in section 167(2)(d) of the Constitution, and requires no additional colouring through such invocation: compare Central African Building Society v Stone & Ors SC15-21.

All the respondents opposed the application.

They deny that their conduct, in the passage of Constitutional Amendment (No.1) Bill of 2017, was in violation of section 147 of the Constitution. Instead, they contend, that, their actions are predicated on a valid order of this Court handed down under CC04-20. They also maintain that none of the applicant's rights was violated by their conduct....,.

On 15 March, the parties then advanced their oral submissions in respect of the application.

Counsel for the applicant stated, that, the critical issue for determination was whether the passage of Constitution of Zimbabwe Amendment (No.1) Act of 2017, on 4 May 2021, breached section 147 of the Constitution.

To him, the crucial thing was to assess the status of the Bill as of 29 July 2018, which is the date on which Parliament stood dissolved.

The date the judgment of this Court, in Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 was delivered was immaterial.

Citing decisions of this Court and the Supreme Court, counsel for the applicant stated, that, the order of this Court in CC04-20 merely confirmed the invalidity of Constitution of Zimbabwe Amendment (No.1) Act, which occurred in August 2017 when that Act was purportedly passed. It was, therefore, not a licence for the Senate to violate section 147 of the Constitution.

Accordingly, he submitted, that, Constitution Amendment (No.1) Bill lapsed when Parliament was dissolved on 29 July 2018.

In respect of the allegations that the applicant's constitutional rights were violated by the conduct of the respondents, counsel for the applicant submitted, that, section 56(1) of the Constitution does not qualify the nature of protection afforded by the section. In his view, the subsection had the same meaning as the equivalent provision under the previous Constitution of Zimbabwe.

Regarding the relief sought by the applicant, counsel for the applicant emphasised that the applicant simply sought a declaration that the passage of Constitution of Zimbabwe Amendment (No.1) Act, on 5 May 2021, was in breach of section 147 of the Constitution.

He formally abandoned the second paragraph of the applicant's draft order set out above.

He added, that, should the Court grant the declaratory relief sought, the order should not have retrospective effect.

Counsel for the applicant also abandoned his preliminary challenges to the authorities of the deponents to the first and second as well as the third respondent's opposing affidavits.

Counsel for the first and second respondents indicated, that, he was persisting with the preliminary points that he raised:

(i) Firstly, he submitted, that, the Court had no jurisdiction as the applicant had improperly joined the President of the Senate to the President and Parliament in an application under section 167(2)(d) contrary to the judgment of this Court in Mliswa v Parliament of the Republic of Zimbabwe CC02-21.

(ii) Secondly, he submitted, that, the applicant had no cause of action because the conduct of the respondents was in compliance with an order of this Court.

On the merits, counsel for the first and second respondents stated, that, the retrospective application of the order passed in CC04-20 was limited. Further, the Court had the power to limit the retrospective application in terms of section 175(6)(b) of the Constitution. Therefore, the provisions of section 147 could not have been breached, so his submissions went.

Counsel for the third respondent also put up ardent opposition to the application.

Essentially, he took three points in response to counsel for the applicant's submissions. He prefaced those points by stating that there are three broad steps in the enactment of a law. These are:

(i) The consideration of a Bill by the National Assembly;

(ii) The consideration of the same Bill by the Senate;

(iii) The President's assent to the Bill as the last step;

Counsel for the third respondent's first point was, that, the Presidential assent to the Bill, in 2017, was not set aside by this Court. Therefore, there was no failure by the third respondent to “re-gazette” the Bill as the applicant had pleaded.

His second point was that when Parliament was dissolved, in July 2018, there was no Constitution Amendment (No.1) Bill. It had become an Act. This meant, that, the declaration by this Court could not have affected the status of that Act as it had limited retrospective effect.

Counsel for the third respondent's third point was, that, section 147 of the Constitution does not impose an obligation on the third respondent. In the absence of such, there cannot be a constitutional obligation that the third respondent breached.

All the respondents prayed for the dismissal of the application.

Mr Zhuwarara, the amicus curiae, made submissions last.

His first submission was, that, the moment the applicant adverted to violations in terms of section 85 of the Constitution, he was obliged to allege that a fundamental right was infringed and to seek relief that is consistent with Chapter 4 of the Constitution. He further submitted, that, the applicant failed to base his relief on Chapter 4 of the Constitution and that ought to be the end of the matter.

On the merits of the application, the amicus submitted, that, judgments of the Constitutional Court are final. On this basis, the judgment in CC04-20 could not be revisited.

While agreeing that the Constitutional Court cannot pass unconstitutional judgments, he stated that this was not the situation in casu.

Proceeding from this point, he added, that, in terms of section 175(6)(b) of the Constitution, this Court passes corrective orders. For this reason, the order of this Court, and the subsequent passage of the Bill by the Senate, did not violate the Constitution.

Mr Zhuwarara concluded his submissions by stating, that, the applicant's rights, in section 56 of the Constitution, could not have been violated because the applicant failed to identify a similarly positioned person who was afforded a favour....,.

The foremost issue arising for determination is whether or not the Constitution of Zimbabwe Amendment (No.1) Act 2017 was an Act of Parliament when Parliament was dissolved in 2018.

In resolving this issue, one must accept, that, even though the applicant abandoned the part of his draft relief that would have nullified the decision of this Court in CC04–20, which abandonment suggests that he no longer wishes to impugn that decision, the determination of this issue is inexorably tied to it.

By no stretch of ingenuity can the applicant circumvent that decision in order to succeed in this application.

Thus, the resolution of the main issue, perforce, demands one to also relate to the order in CC04-20, in my view.

All the applicant's other contentions and claims are ultimately premised on this plank; whether it is the President's alleged failure to “re-gazette” the 'Bill' or Parliament voting on a “lapsed Bill” or the alleged failure by both Parliament and the President to discharge Constitutional obligations ostensibly imposed by section 147 of the Constitution.

It is perhaps opportune at this juncture to dispose of the section 147 of the Constitution contentions.

I am in agreement with the submissions of the respondents, that, section 147 of the Constitution does not impose any obligations upon Parliament or the President. It only provides for the fate of Bills, motions, petitions, and other business which might be pending before the dissolution of Parliament. It does not require Parliament or the President to do anything. It takes effect by operation of law. It is thus applicable to any person, be it a Minister, President, member of Parliament, member of the general public who might have business or a petition pending before Parliament.

It simply declares that such business lapses, without imposing any obligation on anyone.

But, even more significantly, to found exclusive jurisdiction in terms of section 167(2)(d) of the Constitution, the conduct complained of must not only be clearly identified but it must be a duty specifically imposed on Parliament or the President: see, for example, Von Abo v Government of the Republic of South Africa 2009 (2) SA 526.

Furthermore, the obligation concerned must not be one shared by various other stakeholders such as is apparent in section 147 of the Constitution, if at all that section imposes any duties; which it has been shown above it does not.

In Economic Freedom Fighters v Speaker of the National Assembly & Ors 2016 ZACC 11, the South African Constitutional Court stated:

“An alleged breach of a constitutional obligation must relate to an obligation that is specifically imposed on the President or Parliament. An obligation shared with other organs of State will always fail the section 167(4)(e) test…,.” (equivalent to our section 167(2)(d)).

In this case, the applicant has attacked Parliament, the President, and even this Court for allegedly breaching section 147 of the Constitution.

He cannot, therefore, invoke section 167(2)(d) of the Constitution in a matter impugning the conduct of the legislature, the executive, and even the judiciary for breach of section 147 of the Constitution.

The applicant argues, that, Constitutional Amendment Bill (No.1) of 2017 lapsed upon the dissolution of Parliament in July 2018, and anchors this contention on section 147 of the Constitution. That section reads:

“147 Lapsing of Bills, motions, petitions and other business on dissolution of Parliament

On the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition, and other business lapses.”

Any constitutional or statutory provision is dependent on the existence of specific juridical facts before it can come into operation.

For section 147 of the Constitution to be invoked and set off any particular legal effect on Bills, specific juridical facts must be found to exist. These are:

(i) Parliament must have been dissolved.

(ii) There must have been proceedings before it. In its widest sense, the term 'proceedings' includes matters connected with, or ancillary to, the formal transaction of business in Parliament: see Smith v Mutasa 1989 (3) ZLR 183 (S)…, and also ERSKINE MAY's Treatise on the Law, Privileges and Usages of Parliament, 25th Ed, 2019…,.

(iii) The proceedings must have been pending at the time of dissolution.

(iv) There must have been a Bill. Section 332 of the Constitution states that “Constitutional Bill” means a Bill, which, if enacted, would have the effect of amending any of the provisions of the Constitution.

The status of the Bill in question must first be assessed at the time Parliament was dissolved. This is the only way that one can tell whether the Bill lapsed when Parliament was dissolved.

Turning to the necessary facts which trigger the application of section 147 of the Constitution.

All the parties are in agreement, that, Parliament was dissolved. However, I find that there were no pending proceedings in respect of Constitutional Amendment Bill (No.1) of 2017 at the time of dissolution nor was that Bill still in existence as such.

That Bill had become law; Constitution of Zimbabwe Amendment (No.1) Act (Act 10 of 2017).

The applicant accepts this fact.

The respondents also accept that the Bill became law on 7 September 2017 - prior to the dissolution of Parliament.

In the absence of the necessary facts envisaged by section 147 of the Constitution, Constitutional Amendment Bill (No.1) could not have lapsed since it was no longer pending. There also could not have been any proceedings in respect of that Bill.

Suffice to mention, that, the question of the validity of the resultant Constitution of Zimbabwe Amendment (No.1) Act does not arise at the point of dissolution of Parliament. This is because, upon the dissolution of Parliament, that Act was presumed to be constitutional and valid: see In Re: Prosecutor-General of Zimbabwe on his Constitutional Independence and Protection from Direction and Control 2017 (1) ZLR (CC)…,.

It is common cause, that, Constitution of Zimbabwe Amendment (No.1) Act was subsequently nullified by this Court on 30 March 2020.

That order obviously does bear upon the status of the Bill at the time Parliament was dissolved.

Therefore, one must look at the terms of the order in CC04-20 to find out whether that order had the effect of returning the Bill to its status quo ante rendering it susceptible to the provisions of section 147 of the Constitution.

Until the passage of the order in CC04-20, no person could have disregarded Constitution of Zimbabwe Amendment (No.1) of 2017. That Act, as already stated, was presumed to be constitutional and valid.

Pertinently, after declaring the passage of Constitutional Amendment Bill (No.1) of 2017 to have been inconsistent with section 328(5) of the Constitution, this Court went further to set out the point at which the declaration of invalidity would take effect:

“The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).”

The above excerpt from the order in CC04-20 entertains one interpretation only.

The invalidity of the Constitution of Zimbabwe Amendment (No.1) Act took effect from the date of the order – 31 March 2020.

Thus, despite the subsequent declaration of invalidity, the Bill was not susceptible to the effect of section 147 of the Constitution, on 29 July 2018, because it was an Act at that date. Its invalidity takes effect in accordance with the order of this Court above.

However, the constitutionality of the above order is, in fact, what the applicant is challenging.

But, that order was made in terms of a provision of our Constitution.

Section 175(6) of the Constitution provides for the powers of courts to make orders in constitutional matters. It reads:

“(6) When deciding a constitutional matter within its jurisdiction, a court may —

(a) Declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of the inconsistency;

(b) Make any order that is just and equitable, including an order limiting the retrospective effect of the declaration of invalidity and an order suspending, conditionally or unconditionally, the declaration of invalidity for any period to allow the competent authority to correct the defect.”

On a close reading of the above provision, one notes, that, a court may only declare a law or conduct to be invalid to the extent of its inconsistency with the Constitution, and no more. A court must preserve all the constitutional parts of any law or conduct and only cut out the unconstitutional part.

By way of analogy, and without restricting or qualifying the import of a court's power to declare a law or conduct to be inconsistent with the Constitution to the extent of its inconsistency, section 175(6)(a) of the Constitution is comparable to the power of severance accorded to courts in contract law.

This is known as the blue pencil rule.

The common law blue pencil rule allows a court to sever an unenforceable portion of a contract so as to preserve the remaining enforceable portion of that contract: see TBIC Investments (Pvt) Ltd & Anor v Mangenje & Ors 2018 (1) ZLR 137 (S)…,.

The purpose of the blue pencil rule is to ensure, that, the valid portions of a contract that the parties sought to have enforced are not invalidated by reason of other void portions of the contract.

So, too, are the powers of a court under section 175(6)(a) of the Constitution intended to ensure that this Court saves the portions of laws and conduct that were validly enacted or performed.

Mr Zhuwarara, as amicus curiae, correctly submitted, that, this Court passes corrective orders under section 175(6)(b) of the Constitution.

As already noted, the section does give the Court discretion, where it is just and equitable, to suspend a declaration of invalidity, conditionally or unconditionally, for any period to allow the competent authority to correct the defect.

The corrective or remedial power exercised by the Court is not incompatible with the object of section 147 of the Constitution nor any other provision of the Constitution at large. It permits this Court to curtail the retrospective effect of an order of invalidity as it did in CC04-20.

An order made in terms of section 175(6)(b) of the Constitution is, by the Constitution's own architecture, constitutional — provided that it is just and equitable.

The formative opinion on the utility of section 175(6)(b) of the Constitution was set out in M & Anor v Minister of Justice, Legal & Parliamentary Affairs 2016 (2) ZLR 45 (CC); CC12-15…,.

This Court held, that, an exercise of the power bestowed by section 175(6)(b) of the Constitution is done with the appreciation of “the immense disruption that a retrospective declaration of invalidity may cause on the persons who conducted themselves on the basis that the legislation was valid.”

I note, that, the purpose of section 175(6)(b) of our Constitution is remarkably similar to section 172(1)(b) of the South African Constitution, even though the two provisions are not worded in the exactly the same manner. The South African equivalent reads as follows:

“Powers of courts in constitutional matters

172(1) When deciding a constitutional matter within its power, a court —

(a) Must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and

(b) May make any order that is just and equitable, including —

(i) An order limiting the retrospective effect of the declaration of invalidity; and

(ii) An order suspending the declaration of invalidity for any period, and on any conditions, to allow the competent authority to correct the defect.”

In this light, MADLANGA J, writing for the majority in the South African case of Corruption Watch NPC & Ors v President of the Republic of South Africa & Ors [2018] ZACC 23…, concluded:

“There is no pre-ordained consequence that must flow from our declarations of constitutional invalidity. In terms of section 172(1)(b) of the Constitution, we may make any order that is just and equitable. The operative word 'any' is as wide as it sounds. Wide though this jurisdiction may be, it is not unbridled. It is bounded by the very two factors stipulated in the section – justice and equity. This Court has laid down certain principles in charting the path on the exercise of discretion to determine a just and equitable remedy.”

Dealing with the effect of Article 25(1)(a) of the Namibian Constitution, which is the equivalent of our section 175(6)(b), DAMASEB DCJ, in CRAN v Telecom Namibia Ltd & Ors NASC 18/2018 concluded, that, the Article in question:

“…, empowers the court to suspend the order of invalidity to afford the legislature the opportunity to correct the defect identified by the court. During the period of suspension, the implicated provision continues to have the full force of the law.”

Given the wide jurisdiction that the Court has in making orders in terms of section 175(6)(b) of the Constitution, it has invoked its power in several instances other than in CC04-20.

For instance, in Democratic Assembly for Restoration and Empowerment & Ors v Saunyama & Ors CC09-18…, the Court suspended the order of invalidity of a law to enable the competent authorities to attend to the defects, while in Zimbabwe Law Officers Association & Anor v National Prosecuting Authority & Ors CC01-19, the Court suspended, conditionally, its order declaring the engagement of members of security services in the National Prosecuting Authority as unconstitutional to avoid paralysing its operations.

The progressive implementation of the rule of law would be greatly undermined without section 175(6) of the Constitution.

When one considers the endless list of circumstances over which declarations of unconstitutionality could possibly be passed, the potentially disruptive effects of such declarations can become overwhelming.

Acts that were believed to be legal today would suddenly be illegal and invalidated. People who had legitimately enjoyed certain rights could suddenly lose them. Those who were in credit before a declaration of invalidity could suddenly become debtors. Couples who were legally married to each other for years would suddenly be deemed to be living 'in sin'.

Thus, section 175(6) of the Constitution is inserted into our Constitution to ensure just and orderly enforcement of the Constitution. It prevents the winding back of hands of time beyond our capacity to cope with the retrospective effects of declarations of unconstitutionality.

The Canadian case of Re Manitoba Language Rights 1985 CanLII 33 (SCC); [1985] 1 SCR 721 exemplifies the far-reaching effects that orders of invalidity carry.

The brief facts of that case are that the Governor in Council referred questions to the Supreme Court of Canada relating to language rights under the Manitoba Act 1870 and the Constitutional Act 1867. The two Acts provided, that, the use of both the English and French languages in the Acts of the Parliament of Canada and of the Legislatures of Quebec and Manitoba was mandatory.

The Supreme Court of Canada found, that, statutes that were not printed and published in both the English and French languages were invalid by reason of section 23 of the Manitoba Act 1870. The result of the finding of invalidity was that statutes that were enacted in close to a century prior to the declaration were invalid. Consequently, the Court deemed them temporarily valid.

Relying on the de facto doctrine, being a doctrine of necessity, the Court held…, as follows:

“The application of the de facto doctrine is, however, limited to validating acts which are taken under invalid authority: it does not validate the authority under which the acts took place. In other words, the doctrine does not give effect to unconstitutional laws.

It recognizes and gives effect only to the justified expectations of those who have relied upon the acts of those administering the invalid laws and to the existence and efficacy of public and private bodies corporate, though irregularly or illegally organized.

Thus, the de facto doctrine will save those rights, obligations and other effects which have arisen out of actions performed pursuant to invalid Acts of the Manitoba Legislature by public and private bodies corporate, courts, judges, persons exercising statutory powers and public officials. Such rights, obligations and other effects are, and will always be, enforceable and unassailable.”

Therefore, in light of the above authorities, and, upon examination on the powers of this Court in terms of section 175(6) of the Constitution, I am both compelled and bound to restate, without saying anything further, that, the order in CC04-20 was validly passed as it accords with justice and equity.

Section 175(6) of the Constitution provides for the powers of courts to make orders in constitutional matters. It reads:

“(6) When deciding a constitutional matter within its jurisdiction, a court may —

(a) Declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of the inconsistency;

(b) Make any order that is just and equitable, including an order limiting the retrospective effect of the declaration of invalidity and an order suspending, conditionally or unconditionally, the declaration of invalidity for any period to allow the competent authority to correct the defect.”

On a close reading of the above provision, one notes, that, a court may only declare a law or conduct to be invalid to the extent of its inconsistency with the Constitution, and no more. A court must preserve all the constitutional parts of any law or conduct and only cut out the unconstitutional part....,.

Mr Zhuwarara, as amicus curiae, correctly submitted, that, this Court passes corrective orders under section 175(6)(b) of the Constitution.

Section 175(6) of the Constitution provides for the powers of courts to make orders in constitutional matters. It reads:

“(6) When deciding a constitutional matter within its jurisdiction, a court may —

(a) Declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of the inconsistency;

(b) Make any order that is just and equitable, including an order limiting the retrospective effect of the declaration of invalidity and an order suspending, conditionally or unconditionally, the declaration of invalidity for any period to allow the competent authority to correct the defect.”...,.

Mr Zhuwarara, as amicus curiae, correctly submitted, that, this Court passes corrective orders under section 175(6)(b) of the Constitution.

Section 175(6) of the Constitution provides for the powers of courts to make orders in constitutional matters. It reads:

“(6) When deciding a constitutional matter within its jurisdiction, a court may —

(a) Declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of the inconsistency;

(b) Make any order that is just and equitable, including an order limiting the retrospective effect of the declaration of invalidity and an order suspending, conditionally or unconditionally, the declaration of invalidity for any period to allow the competent authority to correct the defect.”

On a close reading of the above provision, one notes, that, a court may only declare a law or conduct to be invalid to the extent of its inconsistency with the Constitution, and no more. A court must preserve all the constitutional parts of any law or conduct and only cut out the unconstitutional part.

By way of analogy, and without restricting or qualifying the import of a court's power to declare a law or conduct to be inconsistent with the Constitution to the extent of its inconsistency, section 175(6)(a) of the Constitution is comparable to the power of severance accorded to courts in contract law.

This is known as the blue pencil rule.

The common law blue pencil rule allows a court to sever an unenforceable portion of a contract so as to preserve the remaining enforceable portion of that contract: see TBIC Investments (Pvt) Ltd & Anor v Mangenje & Ors 2018 (1) ZLR 137 (S)…,.

The purpose of the blue pencil rule is to ensure, that, the valid portions of a contract that the parties sought to have enforced are not invalidated by reason of other void portions of the contract.

So, too, are the powers of a court under section 175(6)(a) of the Constitution intended to ensure that this Court saves the portions of laws and conduct that were validly enacted or performed.

The applicant is a Member of Parliament representing the Mutare Central Constituency. He filed this application, essentially, in terms of section 167(2)(d) of the Constitution of Zimbabwe, 2013 (hereafter 'the Constitution') albeit with passing references to section 85 of the Constitution. In fact, in his answering affidavit, the applicant made it abundantly clear that the application was indeed solely in terms of section 167(2)(d) of the Constitution.

Thus, any references to section 85 of the Constitution shall be taken merely as means to bolster the principal cause of action, and not as a separate cause of action.

Initially, the applicant sought an order in the terms set out below:

“IT IS HEREBY DECLARED THAT:

1. The passage of Constitutional Amendment Bill (No.1) of 2017 in Parliament on the 4th of May 2021 be and is hereby set aside on the basis that the bill had lapsed in July of 2018 and therefore its passage was in breach of section 147 of the Constitution of Zimbabwe:

Therefore:

(i) The actions of Parliament, in passing Constitutional Amendment Bill No.1 of 2017, are in breach of the provisions of section 147 of the Constitution of Zimbabwe.

(ii) The actions of the President of the Republic of Zimbabwe, in assenting to Constitutional Amendment Bill No.1, are in breach of section 147 of the Constitution of Zimbabwe.

(iii) Constitutional Amendment No.1 Act of 2017, gazetted on the 7th of September 2017, be and is hereby set aside.

2. That, the judgment of the Constitutional Court, in the case of Innocent Gonese & Jessie Majome v The Speaker of Parliament & Others CC04-20, directing that part of the disposition of the Constitutional Court directing Senate passes Constitutional Amendment Bill No.1, within 180 days from the declaration of invalidity, be and is hereby declared to be a nullity in breach of section 147 of the Constitution of Zimbabwe.

3. 2nd Respondent must pay cost (sic) of suit.”

I have deliberately used the word “initially” for reasons that will shortly become apparent.

The application relates to the enactment of Constitution of Zimbabwe Amendment (No.1) Act 2017. The relevant facts are all common cause:

On 25 July 2017, the National Assembly passed Constitutional Amendment (No.1) Bill 2017. Thereafter, on 1 August 2017, the Senate purported to pass the same Bill. On 7 September 2017, the President assented to the Bill. The Bill was published in the Government Gazette, promulgated as law, and thereafter became known as Constitution of Zimbabwe Amendment (No.1) Act, 2017.

It is crucial to note, that, a few days prior to the President's assent, the applicant, and a fellow Member of Parliament, had filed an application, under case number CCZ57/17, in terms of section 167(2)(d) of the Constitution, alleging that the second respondent had failed to fulfil a constitutional obligation.

Subsequent to the promulgation of Constitution of Zimbabwe Amendment (No.1) Act 2017, the applicant, together with his fellow Member of Parliament aforesaid, filed another constitutional application, under case number CCZ58/17, on 13 September 2017. They alleged that the second respondent had failed to fulfil a constitutional obligation by its passing of a constitutional bill in the absence of a two-thirds majority as required by section 328 of the Constitution.

The applications under CCZ57/17 and CCZ58/17 were consolidated and heard on 31 January 2018. After hearing the parties submissions in respect of those applications, this Court reserved its judgment.

Pending the delivery of the judgment, the country underwent harmonised general elections on 30 July 2018. Thus, Parliament stood dissolved at midnight on 29 July 2018, the day before the first polling day of the general election in terms of section 143 of the Constitution.

On 31 March 2020, this Court passed judgment in respect of the applications under CCZ57/17 and CCZ58/17. That is, the judgment of Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 (hereafter referred to as 'CC04-20').

The operative part of that judgment reads as follows:

“1. It is declared that the passing of Constitutional Amendment Bill (No.1) of 2017 by the Senate on 01 August 2017 was inconsistent with the provisions of section 328(5) of the Constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House. Constitutional Amendment Bill (No.1) of 2017 is declared invalid to the extent of the inconsistency. The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).

Accordingly, the following order is made –

(a) The proceedings in the Senate, on 01 August 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and are hereby set aside for the reason that a two-thirds majority vote was not reached in that House.

(b) The Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within one hundred and eighty days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No.1) of 2017 in paragraph (1) shall become final.

2. The applicants allegation, that, there was no vote in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

3. The applicants allegation, that a two-thirds majority was not reached in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

4. There is no order as to costs.”

For reasons that are not pertinent to the present application, the Senate failed to conduct another vote within the period that was set out in paragraph 1(b) of the judgment under CC04-20.

As a result, the first and second respondents, and the Speaker of the National Assembly, implored this Court, by application, to extend the period that had been set out for conducting a second vote under case number CCZ11/20. The application was heard on 10 November 2020 and judgment was reserved.

On 25 February 2021, judgment was delivered in that application as the judgment of President of the Senate & Ors v Gonese & Ors CC01-21 (hereafter referred to as 'CC01-21'). The order passed in CC01-21 reads:

“Accordingly, I make the following order:

1. The application is granted.

2. The period referred to in para (b) of the order handed down on 31 March 2020 is extended by a further ninety days from the date of this order.

3. Each party shall bear its own costs.”

I digress briefly to foreshadow that I will advert to more comprehensively later in this judgment.

In view of the above order, the Senate conducted another vote on the Constitutional Amendment (No.1) Bill of 2017.

On 4 May 2021, it passed the Constitutional Amendment Bill (No.1).

The applicant contends, that, the passage of the Bill in the manner aforesaid, on 4 May 2021, is unconstitutional.

He principally considers the second and third respondents to have failed to fulfil constitutional obligations in the passage of the Bill contrary to the provisions of section 147 of the Constitution.

The applicant also considers the impugned conduct of the respondents to have been accentuated by the simultaneous violation of his rights under section 56(1) of the Constitution.

However, this last contention does not appear to have been persisted in with much vigour and conviction considering that the applicant stated, unambiguously, that, his application was solely in terms of section 167(2)(d) of the Constitution. In fact, the amicus considers this as the applicant's “fringe” contention.

At any rate, in my view, there would be no need to invoke section 56(1) of the Constitution where the cause of action is one of failure to fulfil a constitutional obligation as that situation is specifically provided for sufficiently in section 167(2)(d) of the Constitution, and requires no additional colouring through such invocation: compare Central African Building Society v Stone & Ors SC15-21.

All the respondents opposed the application.

They deny that their conduct, in the passage of Constitutional Amendment (No.1) Bill of 2017, was in violation of section 147 of the Constitution. Instead, they contend, that, their actions are predicated on a valid order of this Court handed down under CC04-20. They also maintain that none of the applicant's rights was violated by their conduct....,.

On 15 March, the parties then advanced their oral submissions in respect of the application.

Counsel for the applicant stated, that, the critical issue for determination was whether the passage of Constitution of Zimbabwe Amendment (No.1) Act of 2017, on 4 May 2021, breached section 147 of the Constitution.

To him, the crucial thing was to assess the status of the Bill as of 29 July 2018, which is the date on which Parliament stood dissolved.

The date the judgment of this Court, in Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 was delivered was immaterial.

Citing decisions of this Court and the Supreme Court, counsel for the applicant stated, that, the order of this Court in CC04-20 merely confirmed the invalidity of Constitution of Zimbabwe Amendment (No.1) Act, which occurred in August 2017 when that Act was purportedly passed. It was, therefore, not a licence for the Senate to violate section 147 of the Constitution.

Accordingly, he submitted, that, Constitution Amendment (No.1) Bill lapsed when Parliament was dissolved on 29 July 2018.

In respect of the allegations that the applicant's constitutional rights were violated by the conduct of the respondents, counsel for the applicant submitted, that, section 56(1) of the Constitution does not qualify the nature of protection afforded by the section. In his view, the subsection had the same meaning as the equivalent provision under the previous Constitution of Zimbabwe.

Regarding the relief sought by the applicant, counsel for the applicant emphasised that the applicant simply sought a declaration that the passage of Constitution of Zimbabwe Amendment (No.1) Act, on 5 May 2021, was in breach of section 147 of the Constitution.

He formally abandoned the second paragraph of the applicant's draft order set out above.

He added, that, should the Court grant the declaratory relief sought, the order should not have retrospective effect.

Counsel for the applicant also abandoned his preliminary challenges to the authorities of the deponents to the first and second as well as the third respondent's opposing affidavits.

Counsel for the first and second respondents indicated, that, he was persisting with the preliminary points that he raised:

(i) Firstly, he submitted, that, the Court had no jurisdiction as the applicant had improperly joined the President of the Senate to the President and Parliament in an application under section 167(2)(d) contrary to the judgment of this Court in Mliswa v Parliament of the Republic of Zimbabwe CC02-21.

(ii) Secondly, he submitted, that, the applicant had no cause of action because the conduct of the respondents was in compliance with an order of this Court.

On the merits, counsel for the first and second respondents stated, that, the retrospective application of the order passed in CC04-20 was limited. Further, the Court had the power to limit the retrospective application in terms of section 175(6)(b) of the Constitution. Therefore, the provisions of section 147 could not have been breached, so his submissions went.

Counsel for the third respondent also put up ardent opposition to the application.

Essentially, he took three points in response to counsel for the applicant's submissions. He prefaced those points by stating that there are three broad steps in the enactment of a law. These are:

(i) The consideration of a Bill by the National Assembly;

(ii) The consideration of the same Bill by the Senate;

(iii) The President's assent to the Bill as the last step;

Counsel for the third respondent's first point was, that, the Presidential assent to the Bill, in 2017, was not set aside by this Court. Therefore, there was no failure by the third respondent to “re-gazette” the Bill as the applicant had pleaded.

His second point was that when Parliament was dissolved, in July 2018, there was no Constitution Amendment (No.1) Bill. It had become an Act. This meant, that, the declaration by this Court could not have affected the status of that Act as it had limited retrospective effect.

Counsel for the third respondent's third point was, that, section 147 of the Constitution does not impose an obligation on the third respondent. In the absence of such, there cannot be a constitutional obligation that the third respondent breached.

All the respondents prayed for the dismissal of the application.

Mr Zhuwarara, the amicus curiae, made submissions last.

His first submission was, that, the moment the applicant adverted to violations in terms of section 85 of the Constitution, he was obliged to allege that a fundamental right was infringed and to seek relief that is consistent with Chapter 4 of the Constitution. He further submitted, that, the applicant failed to base his relief on Chapter 4 of the Constitution and that ought to be the end of the matter.

On the merits of the application, the amicus submitted, that, judgments of the Constitutional Court are final. On this basis, the judgment in CC04-20 could not be revisited.

While agreeing that the Constitutional Court cannot pass unconstitutional judgments, he stated that this was not the situation in casu.

Proceeding from this point, he added, that, in terms of section 175(6)(b) of the Constitution, this Court passes corrective orders. For this reason, the order of this Court, and the subsequent passage of the Bill by the Senate, did not violate the Constitution.

Mr Zhuwarara concluded his submissions by stating, that, the applicant's rights, in section 56 of the Constitution, could not have been violated because the applicant failed to identify a similarly positioned person who was afforded a favour....,.

The foremost issue arising for determination is whether or not the Constitution of Zimbabwe Amendment (No.1) Act 2017 was an Act of Parliament when Parliament was dissolved in 2018.

In resolving this issue, one must accept, that, even though the applicant abandoned the part of his draft relief that would have nullified the decision of this Court in CC04–20, which abandonment suggests that he no longer wishes to impugn that decision, the determination of this issue is inexorably tied to it.

By no stretch of ingenuity can the applicant circumvent that decision in order to succeed in this application.

Thus, the resolution of the main issue, perforce, demands one to also relate to the order in CC04-20, in my view.

All the applicant's other contentions and claims are ultimately premised on this plank; whether it is the President's alleged failure to “re-gazette” the 'Bill' or Parliament voting on a “lapsed Bill” or the alleged failure by both Parliament and the President to discharge Constitutional obligations ostensibly imposed by section 147 of the Constitution.

It is perhaps opportune at this juncture to dispose of the section 147 of the Constitution contentions.

I am in agreement with the submissions of the respondents, that, section 147 of the Constitution does not impose any obligations upon Parliament or the President. It only provides for the fate of Bills, motions, petitions, and other business which might be pending before the dissolution of Parliament. It does not require Parliament or the President to do anything. It takes effect by operation of law. It is thus applicable to any person, be it a Minister, President, member of Parliament, member of the general public who might have business or a petition pending before Parliament.

It simply declares that such business lapses, without imposing any obligation on anyone.

But, even more significantly, to found exclusive jurisdiction in terms of section 167(2)(d) of the Constitution, the conduct complained of must not only be clearly identified but it must be a duty specifically imposed on Parliament or the President: see, for example, Von Abo v Government of the Republic of South Africa 2009 (2) SA 526.

Furthermore, the obligation concerned must not be one shared by various other stakeholders such as is apparent in section 147 of the Constitution, if at all that section imposes any duties; which it has been shown above it does not.

In Economic Freedom Fighters v Speaker of the National Assembly & Ors 2016 ZACC 11, the South African Constitutional Court stated:

“An alleged breach of a constitutional obligation must relate to an obligation that is specifically imposed on the President or Parliament. An obligation shared with other organs of State will always fail the section 167(4)(e) test…,.” (equivalent to our section 167(2)(d)).

In this case, the applicant has attacked Parliament, the President, and even this Court for allegedly breaching section 147 of the Constitution.

He cannot, therefore, invoke section 167(2)(d) of the Constitution in a matter impugning the conduct of the legislature, the executive, and even the judiciary for breach of section 147 of the Constitution.

The applicant argues, that, Constitutional Amendment Bill (No.1) of 2017 lapsed upon the dissolution of Parliament in July 2018, and anchors this contention on section 147 of the Constitution. That section reads:

“147 Lapsing of Bills, motions, petitions and other business on dissolution of Parliament

On the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition, and other business lapses.”

Any constitutional or statutory provision is dependent on the existence of specific juridical facts before it can come into operation.

For section 147 of the Constitution to be invoked and set off any particular legal effect on Bills, specific juridical facts must be found to exist. These are:

(i) Parliament must have been dissolved.

(ii) There must have been proceedings before it. In its widest sense, the term 'proceedings' includes matters connected with, or ancillary to, the formal transaction of business in Parliament: see Smith v Mutasa 1989 (3) ZLR 183 (S)…, and also ERSKINE MAY's Treatise on the Law, Privileges and Usages of Parliament, 25th Ed, 2019…,.

(iii) The proceedings must have been pending at the time of dissolution.

(iv) There must have been a Bill. Section 332 of the Constitution states that “Constitutional Bill” means a Bill, which, if enacted, would have the effect of amending any of the provisions of the Constitution.

The status of the Bill in question must first be assessed at the time Parliament was dissolved. This is the only way that one can tell whether the Bill lapsed when Parliament was dissolved.

Turning to the necessary facts which trigger the application of section 147 of the Constitution.

All the parties are in agreement, that, Parliament was dissolved. However, I find that there were no pending proceedings in respect of Constitutional Amendment Bill (No.1) of 2017 at the time of dissolution nor was that Bill still in existence as such.

That Bill had become law; Constitution of Zimbabwe Amendment (No.1) Act (Act 10 of 2017).

The applicant accepts this fact.

The respondents also accept that the Bill became law on 7 September 2017 - prior to the dissolution of Parliament.

In the absence of the necessary facts envisaged by section 147 of the Constitution, Constitutional Amendment Bill (No.1) could not have lapsed since it was no longer pending. There also could not have been any proceedings in respect of that Bill.

Suffice to mention, that, the question of the validity of the resultant Constitution of Zimbabwe Amendment (No.1) Act does not arise at the point of dissolution of Parliament. This is because, upon the dissolution of Parliament, that Act was presumed to be constitutional and valid: see In Re: Prosecutor-General of Zimbabwe on his Constitutional Independence and Protection from Direction and Control 2017 (1) ZLR (CC)…,.

It is common cause, that, Constitution of Zimbabwe Amendment (No.1) Act was subsequently nullified by this Court on 30 March 2020.

That order obviously does bear upon the status of the Bill at the time Parliament was dissolved.

Therefore, one must look at the terms of the order in CC04-20 to find out whether that order had the effect of returning the Bill to its status quo ante rendering it susceptible to the provisions of section 147 of the Constitution.

Until the passage of the order in CC04-20, no person could have disregarded Constitution of Zimbabwe Amendment (No.1) of 2017. That Act, as already stated, was presumed to be constitutional and valid.

Pertinently, after declaring the passage of Constitutional Amendment Bill (No.1) of 2017 to have been inconsistent with section 328(5) of the Constitution, this Court went further to set out the point at which the declaration of invalidity would take effect:

“The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).”

The above excerpt from the order in CC04-20 entertains one interpretation only.

The invalidity of the Constitution of Zimbabwe Amendment (No.1) Act took effect from the date of the order – 31 March 2020.

Thus, despite the subsequent declaration of invalidity, the Bill was not susceptible to the effect of section 147 of the Constitution, on 29 July 2018, because it was an Act at that date. Its invalidity takes effect in accordance with the order of this Court above.

However, the constitutionality of the above order is, in fact, what the applicant is challenging.

But, that order was made in terms of a provision of our Constitution.

Section 175(6) of the Constitution provides for the powers of courts to make orders in constitutional matters. It reads:

“(6) When deciding a constitutional matter within its jurisdiction, a court may —

(a) Declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of the inconsistency;

(b) Make any order that is just and equitable, including an order limiting the retrospective effect of the declaration of invalidity and an order suspending, conditionally or unconditionally, the declaration of invalidity for any period to allow the competent authority to correct the defect.”

On a close reading of the above provision, one notes, that, a court may only declare a law or conduct to be invalid to the extent of its inconsistency with the Constitution, and no more. A court must preserve all the constitutional parts of any law or conduct and only cut out the unconstitutional part.

By way of analogy, and without restricting or qualifying the import of a court's power to declare a law or conduct to be inconsistent with the Constitution to the extent of its inconsistency, section 175(6)(a) of the Constitution is comparable to the power of severance accorded to courts in contract law.

This is known as the blue pencil rule.

The common law blue pencil rule allows a court to sever an unenforceable portion of a contract so as to preserve the remaining enforceable portion of that contract: see TBIC Investments (Pvt) Ltd & Anor v Mangenje & Ors 2018 (1) ZLR 137 (S)…,.

The purpose of the blue pencil rule is to ensure, that, the valid portions of a contract that the parties sought to have enforced are not invalidated by reason of other void portions of the contract.

So, too, are the powers of a court under section 175(6)(a) of the Constitution intended to ensure that this Court saves the portions of laws and conduct that were validly enacted or performed.

Mr Zhuwarara, as amicus curiae, correctly submitted, that, this Court passes corrective orders under section 175(6)(b) of the Constitution.

As already noted, the section does give the Court discretion, where it is just and equitable, to suspend a declaration of invalidity, conditionally or unconditionally, for any period to allow the competent authority to correct the defect.

The corrective or remedial power exercised by the Court is not incompatible with the object of section 147 of the Constitution nor any other provision of the Constitution at large. It permits this Court to curtail the retrospective effect of an order of invalidity as it did in CC04-20.

An order made in terms of section 175(6)(b) of the Constitution is, by the Constitution's own architecture, constitutional — provided that it is just and equitable.

The formative opinion on the utility of section 175(6)(b) of the Constitution was set out in M & Anor v Minister of Justice, Legal & Parliamentary Affairs 2016 (2) ZLR 45 (CC); CC12-15…,.

This Court held, that, an exercise of the power bestowed by section 175(6)(b) of the Constitution is done with the appreciation of “the immense disruption that a retrospective declaration of invalidity may cause on the persons who conducted themselves on the basis that the legislation was valid.”

I note, that, the purpose of section 175(6)(b) of our Constitution is remarkably similar to section 172(1)(b) of the South African Constitution, even though the two provisions are not worded in the exactly the same manner. The South African equivalent reads as follows:

“Powers of courts in constitutional matters

172(1) When deciding a constitutional matter within its power, a court —

(a) Must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and

(b) May make any order that is just and equitable, including —

(i) An order limiting the retrospective effect of the declaration of invalidity; and

(ii) An order suspending the declaration of invalidity for any period, and on any conditions, to allow the competent authority to correct the defect.”

In this light, MADLANGA J, writing for the majority in the South African case of Corruption Watch NPC & Ors v President of the Republic of South Africa & Ors [2018] ZACC 23…, concluded:

“There is no pre-ordained consequence that must flow from our declarations of constitutional invalidity. In terms of section 172(1)(b) of the Constitution, we may make any order that is just and equitable. The operative word 'any' is as wide as it sounds. Wide though this jurisdiction may be, it is not unbridled. It is bounded by the very two factors stipulated in the section – justice and equity. This Court has laid down certain principles in charting the path on the exercise of discretion to determine a just and equitable remedy.”

Dealing with the effect of Article 25(1)(a) of the Namibian Constitution, which is the equivalent of our section 175(6)(b), DAMASEB DCJ, in CRAN v Telecom Namibia Ltd & Ors NASC 18/2018 concluded, that, the Article in question:

“…, empowers the court to suspend the order of invalidity to afford the legislature the opportunity to correct the defect identified by the court. During the period of suspension, the implicated provision continues to have the full force of the law.”

Given the wide jurisdiction that the Court has in making orders in terms of section 175(6)(b) of the Constitution, it has invoked its power in several instances other than in CC04-20.

For instance, in Democratic Assembly for Restoration and Empowerment & Ors v Saunyama & Ors CC09-18…, the Court suspended the order of invalidity of a law to enable the competent authorities to attend to the defects, while in Zimbabwe Law Officers Association & Anor v National Prosecuting Authority & Ors CC01-19, the Court suspended, conditionally, its order declaring the engagement of members of security services in the National Prosecuting Authority as unconstitutional to avoid paralysing its operations.

The progressive implementation of the rule of law would be greatly undermined without section 175(6) of the Constitution.

When one considers the endless list of circumstances over which declarations of unconstitutionality could possibly be passed, the potentially disruptive effects of such declarations can become overwhelming.

Acts that were believed to be legal today would suddenly be illegal and invalidated. People who had legitimately enjoyed certain rights could suddenly lose them. Those who were in credit before a declaration of invalidity could suddenly become debtors. Couples who were legally married to each other for years would suddenly be deemed to be living 'in sin'.

Thus, section 175(6) of the Constitution is inserted into our Constitution to ensure just and orderly enforcement of the Constitution. It prevents the winding back of hands of time beyond our capacity to cope with the retrospective effects of declarations of unconstitutionality.

The Canadian case of Re Manitoba Language Rights 1985 CanLII 33 (SCC); [1985] 1 SCR 721 exemplifies the far-reaching effects that orders of invalidity carry.

The brief facts of that case are that the Governor in Council referred questions to the Supreme Court of Canada relating to language rights under the Manitoba Act 1870 and the Constitutional Act 1867. The two Acts provided, that, the use of both the English and French languages in the Acts of the Parliament of Canada and of the Legislatures of Quebec and Manitoba was mandatory.

The Supreme Court of Canada found, that, statutes that were not printed and published in both the English and French languages were invalid by reason of section 23 of the Manitoba Act 1870. The result of the finding of invalidity was that statutes that were enacted in close to a century prior to the declaration were invalid. Consequently, the Court deemed them temporarily valid.

Relying on the de facto doctrine, being a doctrine of necessity, the Court held…, as follows:

“The application of the de facto doctrine is, however, limited to validating acts which are taken under invalid authority: it does not validate the authority under which the acts took place. In other words, the doctrine does not give effect to unconstitutional laws.

It recognizes and gives effect only to the justified expectations of those who have relied upon the acts of those administering the invalid laws and to the existence and efficacy of public and private bodies corporate, though irregularly or illegally organized.

Thus, the de facto doctrine will save those rights, obligations and other effects which have arisen out of actions performed pursuant to invalid Acts of the Manitoba Legislature by public and private bodies corporate, courts, judges, persons exercising statutory powers and public officials. Such rights, obligations and other effects are, and will always be, enforceable and unassailable.”

Therefore, in light of the above authorities, and, upon examination on the powers of this Court in terms of section 175(6) of the Constitution, I am both compelled and bound to restate, without saying anything further, that, the order in CC04-20 was validly passed as it accords with justice and equity.

Both the statutes governing this Court's operations, and judicial precedent, confirm that our decisions are final.

First is section 167(1) of the Constitution, which sets the Constitutional Court as the highest and final court in constitutional matters. Then, section 5(3) of the Constitutional Court Act [Chapter 7:22] entrenches the finality of our decisions. It provides:

“(3) Subject to section 22(2), there shall be no appeal from any judgment of the Court.

(4) The Court shall not be bound by any of its own judgments, rulings, or opinions nor by the judgments or opinions of its predecessors.”

I draw attention to the apposite remarks of MAKARAU JCC in President of the Senate & Ors v Gonese & Ors CC01–21. She stated the following:

“A decision of the Constitutional Court, on a constitutional matter, is final. No court has power to alter the decision of the Court. Only this Court can depart from its previous decisions, rulings, or opinions. I venture to add for emphasis, that, only this Court, in a future and appropriate constitutional matter, may overrule or depart from its previous order. This application is not such a case where the court can overrule or depart from its previous order.”

The principle of stare decisis et non quieta movere, it would seem, operates as strongly horizontally as it does vertically.

The courts, in Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd & Anor CC11-18 and Williams & Anor v Msipha N.O. & Ors 2010 (2) ZLR 552 (S) concluded, that, where a decision is final, it cannot be said to be incorrect because only an Appeal Court has the right to say a decision is correct or not.

The applicant is a Member of Parliament representing the Mutare Central Constituency. He filed this application, essentially, in terms of section 167(2)(d) of the Constitution of Zimbabwe, 2013 (hereafter 'the Constitution') albeit with passing references to section 85 of the Constitution. In fact, in his answering affidavit, the applicant made it abundantly clear that the application was indeed solely in terms of section 167(2)(d) of the Constitution.

Thus, any references to section 85 of the Constitution shall be taken merely as means to bolster the principal cause of action, and not as a separate cause of action.

Initially, the applicant sought an order in the terms set out below:

“IT IS HEREBY DECLARED THAT:

1. The passage of Constitutional Amendment Bill (No.1) of 2017 in Parliament on the 4th of May 2021 be and is hereby set aside on the basis that the bill had lapsed in July of 2018 and therefore its passage was in breach of section 147 of the Constitution of Zimbabwe:

Therefore:

(i) The actions of Parliament, in passing Constitutional Amendment Bill No.1 of 2017, are in breach of the provisions of section 147 of the Constitution of Zimbabwe.

(ii) The actions of the President of the Republic of Zimbabwe, in assenting to Constitutional Amendment Bill No.1, are in breach of section 147 of the Constitution of Zimbabwe.

(iii) Constitutional Amendment No.1 Act of 2017, gazetted on the 7th of September 2017, be and is hereby set aside.

2. That, the judgment of the Constitutional Court, in the case of Innocent Gonese & Jessie Majome v The Speaker of Parliament & Others CC04-20, directing that part of the disposition of the Constitutional Court directing Senate passes Constitutional Amendment Bill No.1, within 180 days from the declaration of invalidity, be and is hereby declared to be a nullity in breach of section 147 of the Constitution of Zimbabwe.

3. 2nd Respondent must pay cost (sic) of suit.”

I have deliberately used the word “initially” for reasons that will shortly become apparent.

The application relates to the enactment of Constitution of Zimbabwe Amendment (No.1) Act 2017. The relevant facts are all common cause:

On 25 July 2017, the National Assembly passed Constitutional Amendment (No.1) Bill 2017. Thereafter, on 1 August 2017, the Senate purported to pass the same Bill. On 7 September 2017, the President assented to the Bill. The Bill was published in the Government Gazette, promulgated as law, and thereafter became known as Constitution of Zimbabwe Amendment (No.1) Act, 2017.

It is crucial to note, that, a few days prior to the President's assent, the applicant, and a fellow Member of Parliament, had filed an application, under case number CCZ57/17, in terms of section 167(2)(d) of the Constitution, alleging that the second respondent had failed to fulfil a constitutional obligation.

Subsequent to the promulgation of Constitution of Zimbabwe Amendment (No.1) Act 2017, the applicant, together with his fellow Member of Parliament aforesaid, filed another constitutional application, under case number CCZ58/17, on 13 September 2017. They alleged that the second respondent had failed to fulfil a constitutional obligation by its passing of a constitutional bill in the absence of a two-thirds majority as required by section 328 of the Constitution.

The applications under CCZ57/17 and CCZ58/17 were consolidated and heard on 31 January 2018. After hearing the parties submissions in respect of those applications, this Court reserved its judgment.

Pending the delivery of the judgment, the country underwent harmonised general elections on 30 July 2018. Thus, Parliament stood dissolved at midnight on 29 July 2018, the day before the first polling day of the general election in terms of section 143 of the Constitution.

On 31 March 2020, this Court passed judgment in respect of the applications under CCZ57/17 and CCZ58/17. That is, the judgment of Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 (hereafter referred to as 'CC04-20').

The operative part of that judgment reads as follows:

“1. It is declared that the passing of Constitutional Amendment Bill (No.1) of 2017 by the Senate on 01 August 2017 was inconsistent with the provisions of section 328(5) of the Constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House. Constitutional Amendment Bill (No.1) of 2017 is declared invalid to the extent of the inconsistency. The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).

Accordingly, the following order is made –

(a) The proceedings in the Senate, on 01 August 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and are hereby set aside for the reason that a two-thirds majority vote was not reached in that House.

(b) The Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within one hundred and eighty days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No.1) of 2017 in paragraph (1) shall become final.

2. The applicants allegation, that, there was no vote in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

3. The applicants allegation, that a two-thirds majority was not reached in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

4. There is no order as to costs.”

For reasons that are not pertinent to the present application, the Senate failed to conduct another vote within the period that was set out in paragraph 1(b) of the judgment under CC04-20.

As a result, the first and second respondents, and the Speaker of the National Assembly, implored this Court, by application, to extend the period that had been set out for conducting a second vote under case number CCZ11/20. The application was heard on 10 November 2020 and judgment was reserved.

On 25 February 2021, judgment was delivered in that application as the judgment of President of the Senate & Ors v Gonese & Ors CC01-21 (hereafter referred to as 'CC01-21'). The order passed in CC01-21 reads:

“Accordingly, I make the following order:

1. The application is granted.

2. The period referred to in para (b) of the order handed down on 31 March 2020 is extended by a further ninety days from the date of this order.

3. Each party shall bear its own costs.”

I digress briefly to foreshadow that I will advert to more comprehensively later in this judgment.

In view of the above order, the Senate conducted another vote on the Constitutional Amendment (No.1) Bill of 2017.

On 4 May 2021, it passed the Constitutional Amendment Bill (No.1).

The applicant contends, that, the passage of the Bill in the manner aforesaid, on 4 May 2021, is unconstitutional.

He principally considers the second and third respondents to have failed to fulfil constitutional obligations in the passage of the Bill contrary to the provisions of section 147 of the Constitution.

The applicant also considers the impugned conduct of the respondents to have been accentuated by the simultaneous violation of his rights under section 56(1) of the Constitution.

However, this last contention does not appear to have been persisted in with much vigour and conviction considering that the applicant stated, unambiguously, that, his application was solely in terms of section 167(2)(d) of the Constitution. In fact, the amicus considers this as the applicant's “fringe” contention.

At any rate, in my view, there would be no need to invoke section 56(1) of the Constitution where the cause of action is one of failure to fulfil a constitutional obligation as that situation is specifically provided for sufficiently in section 167(2)(d) of the Constitution, and requires no additional colouring through such invocation: compare Central African Building Society v Stone & Ors SC15-21.

All the respondents opposed the application.

They deny that their conduct, in the passage of Constitutional Amendment (No.1) Bill of 2017, was in violation of section 147 of the Constitution. Instead, they contend, that, their actions are predicated on a valid order of this Court handed down under CC04-20. They also maintain that none of the applicant's rights was violated by their conduct....,.

On 15 March, the parties then advanced their oral submissions in respect of the application.

Counsel for the applicant stated, that, the critical issue for determination was whether the passage of Constitution of Zimbabwe Amendment (No.1) Act of 2017, on 4 May 2021, breached section 147 of the Constitution.

To him, the crucial thing was to assess the status of the Bill as of 29 July 2018, which is the date on which Parliament stood dissolved.

The date the judgment of this Court, in Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 was delivered was immaterial.

Citing decisions of this Court and the Supreme Court, counsel for the applicant stated, that, the order of this Court in CC04-20 merely confirmed the invalidity of Constitution of Zimbabwe Amendment (No.1) Act, which occurred in August 2017 when that Act was purportedly passed. It was, therefore, not a licence for the Senate to violate section 147 of the Constitution.

Accordingly, he submitted, that, Constitution Amendment (No.1) Bill lapsed when Parliament was dissolved on 29 July 2018.

In respect of the allegations that the applicant's constitutional rights were violated by the conduct of the respondents, counsel for the applicant submitted, that, section 56(1) of the Constitution does not qualify the nature of protection afforded by the section. In his view, the subsection had the same meaning as the equivalent provision under the previous Constitution of Zimbabwe.

Regarding the relief sought by the applicant, counsel for the applicant emphasised that the applicant simply sought a declaration that the passage of Constitution of Zimbabwe Amendment (No.1) Act, on 5 May 2021, was in breach of section 147 of the Constitution.

He formally abandoned the second paragraph of the applicant's draft order set out above.

He added, that, should the Court grant the declaratory relief sought, the order should not have retrospective effect.

Counsel for the applicant also abandoned his preliminary challenges to the authorities of the deponents to the first and second as well as the third respondent's opposing affidavits.

Counsel for the first and second respondents indicated, that, he was persisting with the preliminary points that he raised:

(i) Firstly, he submitted, that, the Court had no jurisdiction as the applicant had improperly joined the President of the Senate to the President and Parliament in an application under section 167(2)(d) contrary to the judgment of this Court in Mliswa v Parliament of the Republic of Zimbabwe CC02-21.

(ii) Secondly, he submitted, that, the applicant had no cause of action because the conduct of the respondents was in compliance with an order of this Court.

On the merits, counsel for the first and second respondents stated, that, the retrospective application of the order passed in CC04-20 was limited. Further, the Court had the power to limit the retrospective application in terms of section 175(6)(b) of the Constitution. Therefore, the provisions of section 147 could not have been breached, so his submissions went.

Counsel for the third respondent also put up ardent opposition to the application.

Essentially, he took three points in response to counsel for the applicant's submissions. He prefaced those points by stating that there are three broad steps in the enactment of a law. These are:

(i) The consideration of a Bill by the National Assembly;

(ii) The consideration of the same Bill by the Senate;

(iii) The President's assent to the Bill as the last step;

Counsel for the third respondent's first point was, that, the Presidential assent to the Bill, in 2017, was not set aside by this Court. Therefore, there was no failure by the third respondent to “re-gazette” the Bill as the applicant had pleaded.

His second point was that when Parliament was dissolved, in July 2018, there was no Constitution Amendment (No.1) Bill. It had become an Act. This meant, that, the declaration by this Court could not have affected the status of that Act as it had limited retrospective effect.

Counsel for the third respondent's third point was, that, section 147 of the Constitution does not impose an obligation on the third respondent. In the absence of such, there cannot be a constitutional obligation that the third respondent breached.

All the respondents prayed for the dismissal of the application.

Mr Zhuwarara, the amicus curiae, made submissions last.

His first submission was, that, the moment the applicant adverted to violations in terms of section 85 of the Constitution, he was obliged to allege that a fundamental right was infringed and to seek relief that is consistent with Chapter 4 of the Constitution. He further submitted, that, the applicant failed to base his relief on Chapter 4 of the Constitution and that ought to be the end of the matter.

On the merits of the application, the amicus submitted, that, judgments of the Constitutional Court are final. On this basis, the judgment in CC04-20 could not be revisited.

While agreeing that the Constitutional Court cannot pass unconstitutional judgments, he stated that this was not the situation in casu.

Proceeding from this point, he added, that, in terms of section 175(6)(b) of the Constitution, this Court passes corrective orders. For this reason, the order of this Court, and the subsequent passage of the Bill by the Senate, did not violate the Constitution.

Mr Zhuwarara concluded his submissions by stating, that, the applicant's rights, in section 56 of the Constitution, could not have been violated because the applicant failed to identify a similarly positioned person who was afforded a favour....,.

The foremost issue arising for determination is whether or not the Constitution of Zimbabwe Amendment (No.1) Act 2017 was an Act of Parliament when Parliament was dissolved in 2018.

In resolving this issue, one must accept, that, even though the applicant abandoned the part of his draft relief that would have nullified the decision of this Court in CC04–20, which abandonment suggests that he no longer wishes to impugn that decision, the determination of this issue is inexorably tied to it.

By no stretch of ingenuity can the applicant circumvent that decision in order to succeed in this application.

Thus, the resolution of the main issue, perforce, demands one to also relate to the order in CC04-20, in my view.

All the applicant's other contentions and claims are ultimately premised on this plank; whether it is the President's alleged failure to “re-gazette” the 'Bill' or Parliament voting on a “lapsed Bill” or the alleged failure by both Parliament and the President to discharge Constitutional obligations ostensibly imposed by section 147 of the Constitution.

It is perhaps opportune at this juncture to dispose of the section 147 of the Constitution contentions.

I am in agreement with the submissions of the respondents, that, section 147 of the Constitution does not impose any obligations upon Parliament or the President. It only provides for the fate of Bills, motions, petitions, and other business which might be pending before the dissolution of Parliament. It does not require Parliament or the President to do anything. It takes effect by operation of law. It is thus applicable to any person, be it a Minister, President, member of Parliament, member of the general public who might have business or a petition pending before Parliament.

It simply declares that such business lapses, without imposing any obligation on anyone.

But, even more significantly, to found exclusive jurisdiction in terms of section 167(2)(d) of the Constitution, the conduct complained of must not only be clearly identified but it must be a duty specifically imposed on Parliament or the President: see, for example, Von Abo v Government of the Republic of South Africa 2009 (2) SA 526.

Furthermore, the obligation concerned must not be one shared by various other stakeholders such as is apparent in section 147 of the Constitution, if at all that section imposes any duties; which it has been shown above it does not.

In Economic Freedom Fighters v Speaker of the National Assembly & Ors 2016 ZACC 11, the South African Constitutional Court stated:

“An alleged breach of a constitutional obligation must relate to an obligation that is specifically imposed on the President or Parliament. An obligation shared with other organs of State will always fail the section 167(4)(e) test…,.” (equivalent to our section 167(2)(d)).

In this case, the applicant has attacked Parliament, the President, and even this Court for allegedly breaching section 147 of the Constitution.

He cannot, therefore, invoke section 167(2)(d) of the Constitution in a matter impugning the conduct of the legislature, the executive, and even the judiciary for breach of section 147 of the Constitution.

The applicant argues, that, Constitutional Amendment Bill (No.1) of 2017 lapsed upon the dissolution of Parliament in July 2018, and anchors this contention on section 147 of the Constitution. That section reads:

“147 Lapsing of Bills, motions, petitions and other business on dissolution of Parliament

On the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition, and other business lapses.”

Any constitutional or statutory provision is dependent on the existence of specific juridical facts before it can come into operation.

For section 147 of the Constitution to be invoked and set off any particular legal effect on Bills, specific juridical facts must be found to exist. These are:

(i) Parliament must have been dissolved.

(ii) There must have been proceedings before it. In its widest sense, the term 'proceedings' includes matters connected with, or ancillary to, the formal transaction of business in Parliament: see Smith v Mutasa 1989 (3) ZLR 183 (S)…, and also ERSKINE MAY's Treatise on the Law, Privileges and Usages of Parliament, 25th Ed, 2019…,.

(iii) The proceedings must have been pending at the time of dissolution.

(iv) There must have been a Bill. Section 332 of the Constitution states that “Constitutional Bill” means a Bill, which, if enacted, would have the effect of amending any of the provisions of the Constitution.

The status of the Bill in question must first be assessed at the time Parliament was dissolved. This is the only way that one can tell whether the Bill lapsed when Parliament was dissolved.

Turning to the necessary facts which trigger the application of section 147 of the Constitution.

All the parties are in agreement, that, Parliament was dissolved. However, I find that there were no pending proceedings in respect of Constitutional Amendment Bill (No.1) of 2017 at the time of dissolution nor was that Bill still in existence as such.

That Bill had become law; Constitution of Zimbabwe Amendment (No.1) Act (Act 10 of 2017).

The applicant accepts this fact.

The respondents also accept that the Bill became law on 7 September 2017 - prior to the dissolution of Parliament.

In the absence of the necessary facts envisaged by section 147 of the Constitution, Constitutional Amendment Bill (No.1) could not have lapsed since it was no longer pending. There also could not have been any proceedings in respect of that Bill.

Suffice to mention, that, the question of the validity of the resultant Constitution of Zimbabwe Amendment (No.1) Act does not arise at the point of dissolution of Parliament. This is because, upon the dissolution of Parliament, that Act was presumed to be constitutional and valid: see In Re: Prosecutor-General of Zimbabwe on his Constitutional Independence and Protection from Direction and Control 2017 (1) ZLR (CC)…,.

It is common cause, that, Constitution of Zimbabwe Amendment (No.1) Act was subsequently nullified by this Court on 30 March 2020.

That order obviously does bear upon the status of the Bill at the time Parliament was dissolved.

Therefore, one must look at the terms of the order in CC04-20 to find out whether that order had the effect of returning the Bill to its status quo ante rendering it susceptible to the provisions of section 147 of the Constitution.

Until the passage of the order in CC04-20, no person could have disregarded Constitution of Zimbabwe Amendment (No.1) of 2017. That Act, as already stated, was presumed to be constitutional and valid.

Pertinently, after declaring the passage of Constitutional Amendment Bill (No.1) of 2017 to have been inconsistent with section 328(5) of the Constitution, this Court went further to set out the point at which the declaration of invalidity would take effect:

“The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).”

The above excerpt from the order in CC04-20 entertains one interpretation only.

The invalidity of the Constitution of Zimbabwe Amendment (No.1) Act took effect from the date of the order – 31 March 2020.

Thus, despite the subsequent declaration of invalidity, the Bill was not susceptible to the effect of section 147 of the Constitution, on 29 July 2018, because it was an Act at that date. Its invalidity takes effect in accordance with the order of this Court above.

However, the constitutionality of the above order is, in fact, what the applicant is challenging.

But, that order was made in terms of a provision of our Constitution.

Section 175(6) of the Constitution provides for the powers of courts to make orders in constitutional matters. It reads:

“(6) When deciding a constitutional matter within its jurisdiction, a court may —

(a) Declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of the inconsistency;

(b) Make any order that is just and equitable, including an order limiting the retrospective effect of the declaration of invalidity and an order suspending, conditionally or unconditionally, the declaration of invalidity for any period to allow the competent authority to correct the defect.”

On a close reading of the above provision, one notes, that, a court may only declare a law or conduct to be invalid to the extent of its inconsistency with the Constitution, and no more. A court must preserve all the constitutional parts of any law or conduct and only cut out the unconstitutional part.

By way of analogy, and without restricting or qualifying the import of a court's power to declare a law or conduct to be inconsistent with the Constitution to the extent of its inconsistency, section 175(6)(a) of the Constitution is comparable to the power of severance accorded to courts in contract law.

This is known as the blue pencil rule.

The common law blue pencil rule allows a court to sever an unenforceable portion of a contract so as to preserve the remaining enforceable portion of that contract: see TBIC Investments (Pvt) Ltd & Anor v Mangenje & Ors 2018 (1) ZLR 137 (S)…,.

The purpose of the blue pencil rule is to ensure, that, the valid portions of a contract that the parties sought to have enforced are not invalidated by reason of other void portions of the contract.

So, too, are the powers of a court under section 175(6)(a) of the Constitution intended to ensure that this Court saves the portions of laws and conduct that were validly enacted or performed.

Mr Zhuwarara, as amicus curiae, correctly submitted, that, this Court passes corrective orders under section 175(6)(b) of the Constitution.

As already noted, the section does give the Court discretion, where it is just and equitable, to suspend a declaration of invalidity, conditionally or unconditionally, for any period to allow the competent authority to correct the defect.

The corrective or remedial power exercised by the Court is not incompatible with the object of section 147 of the Constitution nor any other provision of the Constitution at large. It permits this Court to curtail the retrospective effect of an order of invalidity as it did in CC04-20.

An order made in terms of section 175(6)(b) of the Constitution is, by the Constitution's own architecture, constitutional — provided that it is just and equitable.

The formative opinion on the utility of section 175(6)(b) of the Constitution was set out in M & Anor v Minister of Justice, Legal & Parliamentary Affairs 2016 (2) ZLR 45 (CC); CC12-15…,.

This Court held, that, an exercise of the power bestowed by section 175(6)(b) of the Constitution is done with the appreciation of “the immense disruption that a retrospective declaration of invalidity may cause on the persons who conducted themselves on the basis that the legislation was valid.”

I note, that, the purpose of section 175(6)(b) of our Constitution is remarkably similar to section 172(1)(b) of the South African Constitution, even though the two provisions are not worded in the exactly the same manner. The South African equivalent reads as follows:

“Powers of courts in constitutional matters

172(1) When deciding a constitutional matter within its power, a court —

(a) Must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and

(b) May make any order that is just and equitable, including —

(i) An order limiting the retrospective effect of the declaration of invalidity; and

(ii) An order suspending the declaration of invalidity for any period, and on any conditions, to allow the competent authority to correct the defect.”

In this light, MADLANGA J, writing for the majority in the South African case of Corruption Watch NPC & Ors v President of the Republic of South Africa & Ors [2018] ZACC 23…, concluded:

“There is no pre-ordained consequence that must flow from our declarations of constitutional invalidity. In terms of section 172(1)(b) of the Constitution, we may make any order that is just and equitable. The operative word 'any' is as wide as it sounds. Wide though this jurisdiction may be, it is not unbridled. It is bounded by the very two factors stipulated in the section – justice and equity. This Court has laid down certain principles in charting the path on the exercise of discretion to determine a just and equitable remedy.”

Dealing with the effect of Article 25(1)(a) of the Namibian Constitution, which is the equivalent of our section 175(6)(b), DAMASEB DCJ, in CRAN v Telecom Namibia Ltd & Ors NASC 18/2018 concluded, that, the Article in question:

“…, empowers the court to suspend the order of invalidity to afford the legislature the opportunity to correct the defect identified by the court. During the period of suspension, the implicated provision continues to have the full force of the law.”

Given the wide jurisdiction that the Court has in making orders in terms of section 175(6)(b) of the Constitution, it has invoked its power in several instances other than in CC04-20.

For instance, in Democratic Assembly for Restoration and Empowerment & Ors v Saunyama & Ors CC09-18…, the Court suspended the order of invalidity of a law to enable the competent authorities to attend to the defects, while in Zimbabwe Law Officers Association & Anor v National Prosecuting Authority & Ors CC01-19, the Court suspended, conditionally, its order declaring the engagement of members of security services in the National Prosecuting Authority as unconstitutional to avoid paralysing its operations.

The progressive implementation of the rule of law would be greatly undermined without section 175(6) of the Constitution.

When one considers the endless list of circumstances over which declarations of unconstitutionality could possibly be passed, the potentially disruptive effects of such declarations can become overwhelming.

Acts that were believed to be legal today would suddenly be illegal and invalidated. People who had legitimately enjoyed certain rights could suddenly lose them. Those who were in credit before a declaration of invalidity could suddenly become debtors. Couples who were legally married to each other for years would suddenly be deemed to be living 'in sin'.

Thus, section 175(6) of the Constitution is inserted into our Constitution to ensure just and orderly enforcement of the Constitution. It prevents the winding back of hands of time beyond our capacity to cope with the retrospective effects of declarations of unconstitutionality.

The Canadian case of Re Manitoba Language Rights 1985 CanLII 33 (SCC); [1985] 1 SCR 721 exemplifies the far-reaching effects that orders of invalidity carry.

The brief facts of that case are that the Governor in Council referred questions to the Supreme Court of Canada relating to language rights under the Manitoba Act 1870 and the Constitutional Act 1867. The two Acts provided, that, the use of both the English and French languages in the Acts of the Parliament of Canada and of the Legislatures of Quebec and Manitoba was mandatory.

The Supreme Court of Canada found, that, statutes that were not printed and published in both the English and French languages were invalid by reason of section 23 of the Manitoba Act 1870. The result of the finding of invalidity was that statutes that were enacted in close to a century prior to the declaration were invalid. Consequently, the Court deemed them temporarily valid.

Relying on the de facto doctrine, being a doctrine of necessity, the Court held…, as follows:

“The application of the de facto doctrine is, however, limited to validating acts which are taken under invalid authority: it does not validate the authority under which the acts took place. In other words, the doctrine does not give effect to unconstitutional laws.

It recognizes and gives effect only to the justified expectations of those who have relied upon the acts of those administering the invalid laws and to the existence and efficacy of public and private bodies corporate, though irregularly or illegally organized.

Thus, the de facto doctrine will save those rights, obligations and other effects which have arisen out of actions performed pursuant to invalid Acts of the Manitoba Legislature by public and private bodies corporate, courts, judges, persons exercising statutory powers and public officials. Such rights, obligations and other effects are, and will always be, enforceable and unassailable.”

Therefore, in light of the above authorities, and, upon examination on the powers of this Court in terms of section 175(6) of the Constitution, I am both compelled and bound to restate, without saying anything further, that, the order in CC04-20 was validly passed as it accords with justice and equity.

The amicus curiae advanced submissions on the finality of the order in CC04-20 that this Court is mandated to take into account.

Both the statutes governing this Court's operations, and judicial precedent, confirm that our decisions are final.

First is section 167(1) of the Constitution, which sets the Constitutional Court as the highest and final court in constitutional matters. Then, section 5(3) of the Constitutional Court Act [Chapter 7:22] entrenches the finality of our decisions. It provides:

“(3) Subject to section 22(2), there shall be no appeal from any judgment of the Court.

(4) The Court shall not be bound by any of its own judgments, rulings, or opinions nor by the judgments or opinions of its predecessors.”

I draw attention to the apposite remarks of MAKARAU JCC in President of the Senate & Ors v Gonese & Ors CC01–21. She stated the following:

“A decision of the Constitutional Court, on a constitutional matter, is final. No court has power to alter the decision of the Court. Only this Court can depart from its previous decisions, rulings, or opinions. I venture to add for emphasis, that, only this Court, in a future and appropriate constitutional matter, may overrule or depart from its previous order. This application is not such a case where the court can overrule or depart from its previous order.”

The position reached in Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd & Anor CC11-18…, is relevant to the facts of this case.

A decision is “correct because it is final. It is not final because it is correct”.

See also Williams & Anor v Msipha NO & Ors 2010 (2) ZLR 552 (S)…,.

The applicant is mistaken, that, the correctness of the decision in CC04-20 is determinative of its finality.

A decision is final because the law says it is final.

The subjective views of a litigant, or any other person, on the correctness or otherwise of a decision are irrelevant in determining the finality of a decision. For this reason, the courts, in Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd & Anor CC11-18 and Williams & Anor v Msipha N.O. & Ors 2010 (2) ZLR 552 (S) concluded, that, where a decision is final, it cannot be said to be incorrect because only an Appeal Court has the right to say a decision is correct or not.

However, this Court may depart from its reasoning in a subsequent case.

This is why the Court is not bound by any of its own judgments, rulings, or opinions in terms of section 5(4) of the Constitutional Court Act.

The possibility that this Court may depart from reasoning or a decision reached before does not entitle a litigant to seek to rely on the purportedly correct position on the basis that the decision was incorrect.

As already stated, the finality of a previous decision is not conditional on its correctness.

Therefore, once a decision has been passed, it is final. The litigants, and the Court, must live with it. It is not easily open to any subsequent challenge - although its reasoning may later be departed from.

The principle of stare decisis et non quieta movere, it would seem, operates as strongly horizontally as it does vertically.

It may be tempting to believe, that, the conclusion I make in this case is at variance with the decision that was reached in CC01-21.

In that case, all the Judges agree, that, the judgment in CC04-20 was final. They also agree that it could not be impugned.

There is, however, a difference of dispute between the instant case and the case in CC01-21.

In CC01-21, the preliminary point raised necessitated a determination of whether or not it was competent for this Court to extend the period within which the Senate could conduct another vote on the Bill. The Court had to determine whether the Bill lapsed in September 2020, after the expiry of the 180 days that had been afforded to the Senate to conduct another vote.

Quite differently, in casu, the dispute relates to whether or not the Bill lapsed upon the dissolution of Parliament in July 2018.

Thus, the judgment in CC01-21 actually affirms the position reached herein, that, the question of whether the Bill lapsed in 2018 is beyond the competency of this Court to enquire into it since the judgment in CC04-20 is final.

It is trite, that, the test for determining whether a law or conduct infringes a fundamental right is to consider the effect of the law or conduct on the fundamental right: see D.A.R.E & Ors v Saunyama N.O. & Ors CC09-18…, and Retrofit (Pvt) Ltd v PTC and Anor 1995 (2) ZLR 199 (S)…,.

In terms of section 56(1) of the Constitution:

“All persons are equal before the law and have a right to equal protection and benefit of the law.”

The import of the above provision is, inter alia, the following:

“It envisages a law which provides equal protection and benefit for the persons affected by it. It includes the right not to be subjected to treatment to which others in a similar position are not subjected.”

See Nkomo v Minister of Local Government, Rural & Urban Development & Ors 2016 (1) ZLR 113 (CC)…,.

In the case of Greatermans Stores (1979) (Pvt) Ltd & Anor v Minister of Public Service, Labour and Social Welfare & Anor 2018 (1) ZLR 335 (CC)…, this Court held, that, the purpose of section 56(1) of the Constitution is “to ensure that those in similar circumstances and conditions, who are the subjects of the legislation, are treated equally, both in the privileges and in the liabilities imposed.”

More recently, in Mupungu v Minister of Justice, Legal and Parliamentary Affairs & Ors CC07-21…, this Court clarified the meaning of the adjective “equal” as used in section 56(1) of the Constitution. It held thus:

“The use of the word 'equal' does indeed qualify the protection and benefit of the law, but, it does so by restricting rather than broadening the scope of section 56(1). What this provision means is that all persons in a similar position must be afforded equality before the law and the same protection and benefit of the law.”

According to the above body of case law, a person alleging a violation of section 56(1) of the Constitution must demonstrate that he was denied the protection of the law, while others similarly positioned were afforded such protection. Put differently, he must show that the law in question operated to discriminate against him in favour of others in the same or similar position: Mupungu v Minister of Justice, Legal and Parliamentary Affairs & Ors CC07-21.

In other words, the general right to protection of the law simpliciter no longer exists or is not to be found in section 56(1) of the Constitution.

Thus, in Nkomo v Minister of Local Government, Rural & Urban Development & Ors 2016 (1) ZLR 113 (CC) …, it was stated:

“The applicant has made no allegation of unequal treatment or differentiation. He has not shown that he was denied protection of the law while others in his position have been afforded such protection. He has presented the Court with no evidence that he has been denied equal protection and benefit of the law.”

Section 47 of the Constitution...,, states:

“Section 47 Chapter 4 does not preclude existence of other rights

This Chapter does not preclude the existence of other rights or freedoms that may be recognised or conferred by law, to the extent that they are consistent with this Constitution.”

Counsel for the applicant's contention, that, the right to equal protection and benefit of the law, under the current Constitution, is broader or equivalent to the right under the former Constitution, may well have merit, and the Court, in a proper case, may have the opportunity to revisit and interrogate this issue further.

For, one may ask: how can a right such as the general protection and benefit of the law, a right so notorious and screamingly loud in our jurisprudence, simply disappear without as much as a whimper?

Some have suggested that it has diffused into the expansive Bill of Rights that the current Constitution boasts of, but, without pointing out the exact nooks and crannies wherein it now snugly resides.

Could it be that this right is hiding, in plain sight, under section 56(1) of the Constitution?

That this right, like a binary system of stars, consists of two or even more rights closely held together by gravitational attraction and orbiting so tightly, that, from a distance, it appears as just one right, one star?

Sooner, rather than later, this Court, in my respectful view, must find a proper home for this right and stop its ghost-like wandering or formerly declare its existence or re-incarnation in terms of section 47 of the Constitution, which unambiguously states:

“Section 47 Chapter 4 does not preclude existence of other rights

This Chapter does not preclude the existence of other rights or freedoms that may be recognised or conferred by law, to the extent that they are consistent with this Constitution.”

The applicant is a Member of Parliament representing the Mutare Central Constituency. He filed this application, essentially, in terms of section 167(2)(d) of the Constitution of Zimbabwe, 2013 (hereafter 'the Constitution') albeit with passing references to section 85 of the Constitution. In fact, in his answering affidavit, the applicant made it abundantly clear that the application was indeed solely in terms of section 167(2)(d) of the Constitution.

Thus, any references to section 85 of the Constitution shall be taken merely as means to bolster the principal cause of action, and not as a separate cause of action.

Initially, the applicant sought an order in the terms set out below:

“IT IS HEREBY DECLARED THAT:

1. The passage of Constitutional Amendment Bill (No.1) of 2017 in Parliament on the 4th of May 2021 be and is hereby set aside on the basis that the bill had lapsed in July of 2018 and therefore its passage was in breach of section 147 of the Constitution of Zimbabwe:

Therefore:

(i) The actions of Parliament, in passing Constitutional Amendment Bill No.1 of 2017, are in breach of the provisions of section 147 of the Constitution of Zimbabwe.

(ii) The actions of the President of the Republic of Zimbabwe, in assenting to Constitutional Amendment Bill No.1, are in breach of section 147 of the Constitution of Zimbabwe.

(iii) Constitutional Amendment No.1 Act of 2017, gazetted on the 7th of September 2017, be and is hereby set aside.

2. That, the judgment of the Constitutional Court, in the case of Innocent Gonese & Jessie Majome v The Speaker of Parliament & Others CC04-20, directing that part of the disposition of the Constitutional Court directing Senate passes Constitutional Amendment Bill No.1, within 180 days from the declaration of invalidity, be and is hereby declared to be a nullity in breach of section 147 of the Constitution of Zimbabwe.

3. 2nd Respondent must pay cost (sic) of suit.”

I have deliberately used the word “initially” for reasons that will shortly become apparent.

The application relates to the enactment of Constitution of Zimbabwe Amendment (No.1) Act 2017. The relevant facts are all common cause:

On 25 July 2017, the National Assembly passed Constitutional Amendment (No.1) Bill 2017. Thereafter, on 1 August 2017, the Senate purported to pass the same Bill. On 7 September 2017, the President assented to the Bill. The Bill was published in the Government Gazette, promulgated as law, and thereafter became known as Constitution of Zimbabwe Amendment (No.1) Act, 2017.

It is crucial to note, that, a few days prior to the President's assent, the applicant, and a fellow Member of Parliament, had filed an application, under case number CCZ57/17, in terms of section 167(2)(d) of the Constitution, alleging that the second respondent had failed to fulfil a constitutional obligation.

Subsequent to the promulgation of Constitution of Zimbabwe Amendment (No.1) Act 2017, the applicant, together with his fellow Member of Parliament aforesaid, filed another constitutional application, under case number CCZ58/17, on 13 September 2017. They alleged that the second respondent had failed to fulfil a constitutional obligation by its passing of a constitutional bill in the absence of a two-thirds majority as required by section 328 of the Constitution.

The applications under CCZ57/17 and CCZ58/17 were consolidated and heard on 31 January 2018. After hearing the parties submissions in respect of those applications, this Court reserved its judgment.

Pending the delivery of the judgment, the country underwent harmonised general elections on 30 July 2018. Thus, Parliament stood dissolved at midnight on 29 July 2018, the day before the first polling day of the general election in terms of section 143 of the Constitution.

On 31 March 2020, this Court passed judgment in respect of the applications under CCZ57/17 and CCZ58/17. That is, the judgment of Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 (hereafter referred to as 'CC04-20').

The operative part of that judgment reads as follows:

“1. It is declared that the passing of Constitutional Amendment Bill (No.1) of 2017 by the Senate on 01 August 2017 was inconsistent with the provisions of section 328(5) of the Constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House. Constitutional Amendment Bill (No.1) of 2017 is declared invalid to the extent of the inconsistency. The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).

Accordingly, the following order is made –

(a) The proceedings in the Senate, on 01 August 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and are hereby set aside for the reason that a two-thirds majority vote was not reached in that House.

(b) The Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within one hundred and eighty days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No.1) of 2017 in paragraph (1) shall become final.

2. The applicants allegation, that, there was no vote in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

3. The applicants allegation, that a two-thirds majority was not reached in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

4. There is no order as to costs.”

For reasons that are not pertinent to the present application, the Senate failed to conduct another vote within the period that was set out in paragraph 1(b) of the judgment under CC04-20.

As a result, the first and second respondents, and the Speaker of the National Assembly, implored this Court, by application, to extend the period that had been set out for conducting a second vote under case number CCZ11/20. The application was heard on 10 November 2020 and judgment was reserved.

On 25 February 2021, judgment was delivered in that application as the judgment of President of the Senate & Ors v Gonese & Ors CC01-21 (hereafter referred to as 'CC01-21'). The order passed in CC01-21 reads:

“Accordingly, I make the following order:

1. The application is granted.

2. The period referred to in para (b) of the order handed down on 31 March 2020 is extended by a further ninety days from the date of this order.

3. Each party shall bear its own costs.”

I digress briefly to foreshadow that I will advert to more comprehensively later in this judgment.

In view of the above order, the Senate conducted another vote on the Constitutional Amendment (No.1) Bill of 2017.

On 4 May 2021, it passed the Constitutional Amendment Bill (No.1).

The applicant contends, that, the passage of the Bill in the manner aforesaid, on 4 May 2021, is unconstitutional.

He principally considers the second and third respondents to have failed to fulfil constitutional obligations in the passage of the Bill contrary to the provisions of section 147 of the Constitution.

The applicant also considers the impugned conduct of the respondents to have been accentuated by the simultaneous violation of his rights under section 56(1) of the Constitution.

However, this last contention does not appear to have been persisted in with much vigour and conviction considering that the applicant stated, unambiguously, that, his application was solely in terms of section 167(2)(d) of the Constitution. In fact, the amicus considers this as the applicant's “fringe” contention.

At any rate, in my view, there would be no need to invoke section 56(1) of the Constitution where the cause of action is one of failure to fulfil a constitutional obligation as that situation is specifically provided for sufficiently in section 167(2)(d) of the Constitution, and requires no additional colouring through such invocation: compare Central African Building Society v Stone & Ors SC15-21.

All the respondents opposed the application.

They deny that their conduct, in the passage of Constitutional Amendment (No.1) Bill of 2017, was in violation of section 147 of the Constitution. Instead, they contend, that, their actions are predicated on a valid order of this Court handed down under CC04-20. They also maintain that none of the applicant's rights was violated by their conduct....,.

On 15 March, the parties then advanced their oral submissions in respect of the application.

Counsel for the applicant stated, that, the critical issue for determination was whether the passage of Constitution of Zimbabwe Amendment (No.1) Act of 2017, on 4 May 2021, breached section 147 of the Constitution.

To him, the crucial thing was to assess the status of the Bill as of 29 July 2018, which is the date on which Parliament stood dissolved.

The date the judgment of this Court, in Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 was delivered was immaterial.

Citing decisions of this Court and the Supreme Court, counsel for the applicant stated, that, the order of this Court in CC04-20 merely confirmed the invalidity of Constitution of Zimbabwe Amendment (No.1) Act, which occurred in August 2017 when that Act was purportedly passed. It was, therefore, not a licence for the Senate to violate section 147 of the Constitution.

Accordingly, he submitted, that, Constitution Amendment (No.1) Bill lapsed when Parliament was dissolved on 29 July 2018.

In respect of the allegations that the applicant's constitutional rights were violated by the conduct of the respondents, counsel for the applicant submitted, that, section 56(1) of the Constitution does not qualify the nature of protection afforded by the section. In his view, the subsection had the same meaning as the equivalent provision under the previous Constitution of Zimbabwe.

Regarding the relief sought by the applicant, counsel for the applicant emphasised that the applicant simply sought a declaration that the passage of Constitution of Zimbabwe Amendment (No.1) Act, on 5 May 2021, was in breach of section 147 of the Constitution.

He formally abandoned the second paragraph of the applicant's draft order set out above.

He added, that, should the Court grant the declaratory relief sought, the order should not have retrospective effect.

Counsel for the applicant also abandoned his preliminary challenges to the authorities of the deponents to the first and second as well as the third respondent's opposing affidavits.

Counsel for the first and second respondents indicated, that, he was persisting with the preliminary points that he raised:

(i) Firstly, he submitted, that, the Court had no jurisdiction as the applicant had improperly joined the President of the Senate to the President and Parliament in an application under section 167(2)(d) contrary to the judgment of this Court in Mliswa v Parliament of the Republic of Zimbabwe CC02-21.

(ii) Secondly, he submitted, that, the applicant had no cause of action because the conduct of the respondents was in compliance with an order of this Court.

On the merits, counsel for the first and second respondents stated, that, the retrospective application of the order passed in CC04-20 was limited. Further, the Court had the power to limit the retrospective application in terms of section 175(6)(b) of the Constitution. Therefore, the provisions of section 147 could not have been breached, so his submissions went.

Counsel for the third respondent also put up ardent opposition to the application.

Essentially, he took three points in response to counsel for the applicant's submissions. He prefaced those points by stating that there are three broad steps in the enactment of a law. These are:

(i) The consideration of a Bill by the National Assembly;

(ii) The consideration of the same Bill by the Senate;

(iii) The President's assent to the Bill as the last step;

Counsel for the third respondent's first point was, that, the Presidential assent to the Bill, in 2017, was not set aside by this Court. Therefore, there was no failure by the third respondent to “re-gazette” the Bill as the applicant had pleaded.

His second point was that when Parliament was dissolved, in July 2018, there was no Constitution Amendment (No.1) Bill. It had become an Act. This meant, that, the declaration by this Court could not have affected the status of that Act as it had limited retrospective effect.

Counsel for the third respondent's third point was, that, section 147 of the Constitution does not impose an obligation on the third respondent. In the absence of such, there cannot be a constitutional obligation that the third respondent breached.

All the respondents prayed for the dismissal of the application.

Mr Zhuwarara, the amicus curiae, made submissions last.

His first submission was, that, the moment the applicant adverted to violations in terms of section 85 of the Constitution, he was obliged to allege that a fundamental right was infringed and to seek relief that is consistent with Chapter 4 of the Constitution. He further submitted, that, the applicant failed to base his relief on Chapter 4 of the Constitution and that ought to be the end of the matter.

On the merits of the application, the amicus submitted, that, judgments of the Constitutional Court are final. On this basis, the judgment in CC04-20 could not be revisited.

While agreeing that the Constitutional Court cannot pass unconstitutional judgments, he stated that this was not the situation in casu.

Proceeding from this point, he added, that, in terms of section 175(6)(b) of the Constitution, this Court passes corrective orders. For this reason, the order of this Court, and the subsequent passage of the Bill by the Senate, did not violate the Constitution.

Mr Zhuwarara concluded his submissions by stating, that, the applicant's rights, in section 56 of the Constitution, could not have been violated because the applicant failed to identify a similarly positioned person who was afforded a favour....,.

The foremost issue arising for determination is whether or not the Constitution of Zimbabwe Amendment (No.1) Act 2017 was an Act of Parliament when Parliament was dissolved in 2018.

In resolving this issue, one must accept, that, even though the applicant abandoned the part of his draft relief that would have nullified the decision of this Court in CC04–20, which abandonment suggests that he no longer wishes to impugn that decision, the determination of this issue is inexorably tied to it.

By no stretch of ingenuity can the applicant circumvent that decision in order to succeed in this application.

Thus, the resolution of the main issue, perforce, demands one to also relate to the order in CC04-20, in my view.

All the applicant's other contentions and claims are ultimately premised on this plank; whether it is the President's alleged failure to “re-gazette” the 'Bill' or Parliament voting on a “lapsed Bill” or the alleged failure by both Parliament and the President to discharge Constitutional obligations ostensibly imposed by section 147 of the Constitution.

It is perhaps opportune at this juncture to dispose of the section 147 of the Constitution contentions.

I am in agreement with the submissions of the respondents, that, section 147 of the Constitution does not impose any obligations upon Parliament or the President. It only provides for the fate of Bills, motions, petitions, and other business which might be pending before the dissolution of Parliament. It does not require Parliament or the President to do anything. It takes effect by operation of law. It is thus applicable to any person, be it a Minister, President, member of Parliament, member of the general public who might have business or a petition pending before Parliament.

It simply declares that such business lapses, without imposing any obligation on anyone.

But, even more significantly, to found exclusive jurisdiction in terms of section 167(2)(d) of the Constitution, the conduct complained of must not only be clearly identified but it must be a duty specifically imposed on Parliament or the President: see, for example, Von Abo v Government of the Republic of South Africa 2009 (2) SA 526.

Furthermore, the obligation concerned must not be one shared by various other stakeholders such as is apparent in section 147 of the Constitution, if at all that section imposes any duties; which it has been shown above it does not.

In Economic Freedom Fighters v Speaker of the National Assembly & Ors 2016 ZACC 11, the South African Constitutional Court stated:

“An alleged breach of a constitutional obligation must relate to an obligation that is specifically imposed on the President or Parliament. An obligation shared with other organs of State will always fail the section 167(4)(e) test…,.” (equivalent to our section 167(2)(d)).

In this case, the applicant has attacked Parliament, the President, and even this Court for allegedly breaching section 147 of the Constitution.

He cannot, therefore, invoke section 167(2)(d) of the Constitution in a matter impugning the conduct of the legislature, the executive, and even the judiciary for breach of section 147 of the Constitution.

The applicant argues, that, Constitutional Amendment Bill (No.1) of 2017 lapsed upon the dissolution of Parliament in July 2018, and anchors this contention on section 147 of the Constitution. That section reads:

“147 Lapsing of Bills, motions, petitions and other business on dissolution of Parliament

On the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition, and other business lapses.”

Any constitutional or statutory provision is dependent on the existence of specific juridical facts before it can come into operation.

For section 147 of the Constitution to be invoked and set off any particular legal effect on Bills, specific juridical facts must be found to exist. These are:

(i) Parliament must have been dissolved.

(ii) There must have been proceedings before it. In its widest sense, the term 'proceedings' includes matters connected with, or ancillary to, the formal transaction of business in Parliament: see Smith v Mutasa 1989 (3) ZLR 183 (S)…, and also ERSKINE MAY's Treatise on the Law, Privileges and Usages of Parliament, 25th Ed, 2019…,.

(iii) The proceedings must have been pending at the time of dissolution.

(iv) There must have been a Bill. Section 332 of the Constitution states that “Constitutional Bill” means a Bill, which, if enacted, would have the effect of amending any of the provisions of the Constitution.

The status of the Bill in question must first be assessed at the time Parliament was dissolved. This is the only way that one can tell whether the Bill lapsed when Parliament was dissolved.

Turning to the necessary facts which trigger the application of section 147 of the Constitution.

All the parties are in agreement, that, Parliament was dissolved. However, I find that there were no pending proceedings in respect of Constitutional Amendment Bill (No.1) of 2017 at the time of dissolution nor was that Bill still in existence as such.

That Bill had become law; Constitution of Zimbabwe Amendment (No.1) Act (Act 10 of 2017).

The applicant accepts this fact.

The respondents also accept that the Bill became law on 7 September 2017 - prior to the dissolution of Parliament.

In the absence of the necessary facts envisaged by section 147 of the Constitution, Constitutional Amendment Bill (No.1) could not have lapsed since it was no longer pending. There also could not have been any proceedings in respect of that Bill.

Suffice to mention, that, the question of the validity of the resultant Constitution of Zimbabwe Amendment (No.1) Act does not arise at the point of dissolution of Parliament. This is because, upon the dissolution of Parliament, that Act was presumed to be constitutional and valid: see In Re: Prosecutor-General of Zimbabwe on his Constitutional Independence and Protection from Direction and Control 2017 (1) ZLR (CC)…,.

It is common cause, that, Constitution of Zimbabwe Amendment (No.1) Act was subsequently nullified by this Court on 30 March 2020.

That order obviously does bear upon the status of the Bill at the time Parliament was dissolved.

Therefore, one must look at the terms of the order in CC04-20 to find out whether that order had the effect of returning the Bill to its status quo ante rendering it susceptible to the provisions of section 147 of the Constitution.

Until the passage of the order in CC04-20, no person could have disregarded Constitution of Zimbabwe Amendment (No.1) of 2017. That Act, as already stated, was presumed to be constitutional and valid.

Pertinently, after declaring the passage of Constitutional Amendment Bill (No.1) of 2017 to have been inconsistent with section 328(5) of the Constitution, this Court went further to set out the point at which the declaration of invalidity would take effect:

“The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).”

The above excerpt from the order in CC04-20 entertains one interpretation only.

The invalidity of the Constitution of Zimbabwe Amendment (No.1) Act took effect from the date of the order – 31 March 2020.

Thus, despite the subsequent declaration of invalidity, the Bill was not susceptible to the effect of section 147 of the Constitution, on 29 July 2018, because it was an Act at that date. Its invalidity takes effect in accordance with the order of this Court above.

However, the constitutionality of the above order is, in fact, what the applicant is challenging.

But, that order was made in terms of a provision of our Constitution.

Section 175(6) of the Constitution provides for the powers of courts to make orders in constitutional matters. It reads:

“(6) When deciding a constitutional matter within its jurisdiction, a court may —

(a) Declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of the inconsistency;

(b) Make any order that is just and equitable, including an order limiting the retrospective effect of the declaration of invalidity and an order suspending, conditionally or unconditionally, the declaration of invalidity for any period to allow the competent authority to correct the defect.”

On a close reading of the above provision, one notes, that, a court may only declare a law or conduct to be invalid to the extent of its inconsistency with the Constitution, and no more. A court must preserve all the constitutional parts of any law or conduct and only cut out the unconstitutional part.

By way of analogy, and without restricting or qualifying the import of a court's power to declare a law or conduct to be inconsistent with the Constitution to the extent of its inconsistency, section 175(6)(a) of the Constitution is comparable to the power of severance accorded to courts in contract law.

This is known as the blue pencil rule.

The common law blue pencil rule allows a court to sever an unenforceable portion of a contract so as to preserve the remaining enforceable portion of that contract: see TBIC Investments (Pvt) Ltd & Anor v Mangenje & Ors 2018 (1) ZLR 137 (S)…,.

The purpose of the blue pencil rule is to ensure, that, the valid portions of a contract that the parties sought to have enforced are not invalidated by reason of other void portions of the contract.

So, too, are the powers of a court under section 175(6)(a) of the Constitution intended to ensure that this Court saves the portions of laws and conduct that were validly enacted or performed.

Mr Zhuwarara, as amicus curiae, correctly submitted, that, this Court passes corrective orders under section 175(6)(b) of the Constitution.

As already noted, the section does give the Court discretion, where it is just and equitable, to suspend a declaration of invalidity, conditionally or unconditionally, for any period to allow the competent authority to correct the defect.

The corrective or remedial power exercised by the Court is not incompatible with the object of section 147 of the Constitution nor any other provision of the Constitution at large. It permits this Court to curtail the retrospective effect of an order of invalidity as it did in CC04-20.

An order made in terms of section 175(6)(b) of the Constitution is, by the Constitution's own architecture, constitutional — provided that it is just and equitable.

The formative opinion on the utility of section 175(6)(b) of the Constitution was set out in M & Anor v Minister of Justice, Legal & Parliamentary Affairs 2016 (2) ZLR 45 (CC); CC12-15…,.

This Court held, that, an exercise of the power bestowed by section 175(6)(b) of the Constitution is done with the appreciation of “the immense disruption that a retrospective declaration of invalidity may cause on the persons who conducted themselves on the basis that the legislation was valid.”

I note, that, the purpose of section 175(6)(b) of our Constitution is remarkably similar to section 172(1)(b) of the South African Constitution, even though the two provisions are not worded in the exactly the same manner. The South African equivalent reads as follows:

“Powers of courts in constitutional matters

172(1) When deciding a constitutional matter within its power, a court —

(a) Must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and

(b) May make any order that is just and equitable, including —

(i) An order limiting the retrospective effect of the declaration of invalidity; and

(ii) An order suspending the declaration of invalidity for any period, and on any conditions, to allow the competent authority to correct the defect.”

In this light, MADLANGA J, writing for the majority in the South African case of Corruption Watch NPC & Ors v President of the Republic of South Africa & Ors [2018] ZACC 23…, concluded:

“There is no pre-ordained consequence that must flow from our declarations of constitutional invalidity. In terms of section 172(1)(b) of the Constitution, we may make any order that is just and equitable. The operative word 'any' is as wide as it sounds. Wide though this jurisdiction may be, it is not unbridled. It is bounded by the very two factors stipulated in the section – justice and equity. This Court has laid down certain principles in charting the path on the exercise of discretion to determine a just and equitable remedy.”

Dealing with the effect of Article 25(1)(a) of the Namibian Constitution, which is the equivalent of our section 175(6)(b), DAMASEB DCJ, in CRAN v Telecom Namibia Ltd & Ors NASC 18/2018 concluded, that, the Article in question:

“…, empowers the court to suspend the order of invalidity to afford the legislature the opportunity to correct the defect identified by the court. During the period of suspension, the implicated provision continues to have the full force of the law.”

Given the wide jurisdiction that the Court has in making orders in terms of section 175(6)(b) of the Constitution, it has invoked its power in several instances other than in CC04-20.

For instance, in Democratic Assembly for Restoration and Empowerment & Ors v Saunyama & Ors CC09-18…, the Court suspended the order of invalidity of a law to enable the competent authorities to attend to the defects, while in Zimbabwe Law Officers Association & Anor v National Prosecuting Authority & Ors CC01-19, the Court suspended, conditionally, its order declaring the engagement of members of security services in the National Prosecuting Authority as unconstitutional to avoid paralysing its operations.

The progressive implementation of the rule of law would be greatly undermined without section 175(6) of the Constitution.

When one considers the endless list of circumstances over which declarations of unconstitutionality could possibly be passed, the potentially disruptive effects of such declarations can become overwhelming.

Acts that were believed to be legal today would suddenly be illegal and invalidated. People who had legitimately enjoyed certain rights could suddenly lose them. Those who were in credit before a declaration of invalidity could suddenly become debtors. Couples who were legally married to each other for years would suddenly be deemed to be living 'in sin'.

Thus, section 175(6) of the Constitution is inserted into our Constitution to ensure just and orderly enforcement of the Constitution. It prevents the winding back of hands of time beyond our capacity to cope with the retrospective effects of declarations of unconstitutionality.

The Canadian case of Re Manitoba Language Rights 1985 CanLII 33 (SCC); [1985] 1 SCR 721 exemplifies the far-reaching effects that orders of invalidity carry.

The brief facts of that case are that the Governor in Council referred questions to the Supreme Court of Canada relating to language rights under the Manitoba Act 1870 and the Constitutional Act 1867. The two Acts provided, that, the use of both the English and French languages in the Acts of the Parliament of Canada and of the Legislatures of Quebec and Manitoba was mandatory.

The Supreme Court of Canada found, that, statutes that were not printed and published in both the English and French languages were invalid by reason of section 23 of the Manitoba Act 1870. The result of the finding of invalidity was that statutes that were enacted in close to a century prior to the declaration were invalid. Consequently, the Court deemed them temporarily valid.

Relying on the de facto doctrine, being a doctrine of necessity, the Court held…, as follows:

“The application of the de facto doctrine is, however, limited to validating acts which are taken under invalid authority: it does not validate the authority under which the acts took place. In other words, the doctrine does not give effect to unconstitutional laws.

It recognizes and gives effect only to the justified expectations of those who have relied upon the acts of those administering the invalid laws and to the existence and efficacy of public and private bodies corporate, though irregularly or illegally organized.

Thus, the de facto doctrine will save those rights, obligations and other effects which have arisen out of actions performed pursuant to invalid Acts of the Manitoba Legislature by public and private bodies corporate, courts, judges, persons exercising statutory powers and public officials. Such rights, obligations and other effects are, and will always be, enforceable and unassailable.”

Therefore, in light of the above authorities, and, upon examination on the powers of this Court in terms of section 175(6) of the Constitution, I am both compelled and bound to restate, without saying anything further, that, the order in CC04-20 was validly passed as it accords with justice and equity.

The amicus curiae advanced submissions on the finality of the order in CC04-20 that this Court is mandated to take into account.

Both the statutes governing this Court's operations, and judicial precedent, confirm that our decisions are final.

First is section 167(1) of the Constitution, which sets the Constitutional Court as the highest and final court in constitutional matters. Then, section 5(3) of the Constitutional Court Act [Chapter 7:22] entrenches the finality of our decisions. It provides:

“(3) Subject to section 22(2), there shall be no appeal from any judgment of the Court.

(4) The Court shall not be bound by any of its own judgments, rulings, or opinions nor by the judgments or opinions of its predecessors.”

I draw attention to the apposite remarks of MAKARAU JCC in President of the Senate & Ors v Gonese & Ors CC01–21. She stated the following:

“A decision of the Constitutional Court, on a constitutional matter, is final. No court has power to alter the decision of the Court. Only this Court can depart from its previous decisions, rulings, or opinions. I venture to add for emphasis, that, only this Court, in a future and appropriate constitutional matter, may overrule or depart from its previous order. This application is not such a case where the court can overrule or depart from its previous order.”

The position reached in Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd & Anor CC11-18…, is relevant to the facts of this case.

A decision is “correct because it is final. It is not final because it is correct”.

See also Williams & Anor v Msipha NO & Ors 2010 (2) ZLR 552 (S)…,.

The applicant is mistaken, that, the correctness of the decision in CC04-20 is determinative of its finality.

A decision is final because the law says it is final.

The subjective views of a litigant, or any other person, on the correctness or otherwise of a decision are irrelevant in determining the finality of a decision. For this reason, the courts, in Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd & Anor CC11-18 and Williams & Anor v Msipha N.O. & Ors 2010 (2) ZLR 552 (S) concluded, that, where a decision is final, it cannot be said to be incorrect because only an Appeal Court has the right to say a decision is correct or not.

However, this Court may depart from its reasoning in a subsequent case.

This is why the Court is not bound by any of its own judgments, rulings, or opinions in terms of section 5(4) of the Constitutional Court Act.

The possibility that this Court may depart from reasoning or a decision reached before does not entitle a litigant to seek to rely on the purportedly correct position on the basis that the decision was incorrect.

As already stated, the finality of a previous decision is not conditional on its correctness.

Therefore, once a decision has been passed, it is final. The litigants, and the Court, must live with it. It is not easily open to any subsequent challenge - although its reasoning may later be departed from.

The principle of stare decisis et non quieta movere, it would seem, operates as strongly horizontally as it does vertically.

It may be tempting to believe, that, the conclusion I make in this case is at variance with the decision that was reached in CC01-21.

In that case, all the Judges agree, that, the judgment in CC04-20 was final. They also agree that it could not be impugned.

There is, however, a difference of dispute between the instant case and the case in CC01-21.

In CC01-21, the preliminary point raised necessitated a determination of whether or not it was competent for this Court to extend the period within which the Senate could conduct another vote on the Bill. The Court had to determine whether the Bill lapsed in September 2020, after the expiry of the 180 days that had been afforded to the Senate to conduct another vote.

Quite differently, in casu, the dispute relates to whether or not the Bill lapsed upon the dissolution of Parliament in July 2018.

Thus, the judgment in CC01-21 actually affirms the position reached herein, that, the question of whether the Bill lapsed in 2018 is beyond the competency of this Court to enquire into it since the judgment in CC04-20 is final.

As a way of bolstering his principal claim under section 167 of the Constitution, but, not as a separate cause of action, the applicant alleged, that, the various acts of commission and omission by the respondents violated his rights under section 56(1) of the Constitution.

Counsel for the applicant insisted on this point, of bolstering his argument, in his oral submissions.

The respondents deny that either this Court or any one of them violated the cited right.

It is trite, that, the test for determining whether a law or conduct infringes a fundamental right is to consider the effect of the law or conduct on the fundamental right: see D.A.R.E & Ors v Saunyama N.O. & Ors CC09-18…, and Retrofit (Pvt) Ltd v PTC and Anor 1995 (2) ZLR 199 (S)…,.

The applicant alleges that his right to equal protection and benefit of the law was violated.

In terms of section 56(1) of the Constitution:

“All persons are equal before the law and have a right to equal protection and benefit of the law.”

The import of the above provision is, inter alia, the following:

“It envisages a law which provides equal protection and benefit for the persons affected by it. It includes the right not to be subjected to treatment to which others in a similar position are not subjected.”

See Nkomo v Minister of Local Government, Rural & Urban Development & Ors 2016 (1) ZLR 113 (CC)…,.

In the case of Greatermans Stores (1979) (Pvt) Ltd & Anor v Minister of Public Service, Labour and Social Welfare & Anor 2018 (1) ZLR 335 (CC)…, this Court held, that, the purpose of section 56(1) of the Constitution is “to ensure that those in similar circumstances and conditions, who are the subjects of the legislation, are treated equally, both in the privileges and in the liabilities imposed.”

More recently, in Mupungu v Minister of Justice, Legal and Parliamentary Affairs & Ors CC07-21…, this Court clarified the meaning of the adjective “equal” as used in section 56(1) of the Constitution. It held thus:

“The use of the word 'equal' does indeed qualify the protection and benefit of the law, but, it does so by restricting rather than broadening the scope of section 56(1). What this provision means is that all persons in a similar position must be afforded equality before the law and the same protection and benefit of the law.”

According to the above body of case law, a person alleging a violation of section 56(1) of the Constitution must demonstrate that he was denied the protection of the law, while others similarly positioned were afforded such protection. Put differently, he must show that the law in question operated to discriminate against him in favour of others in the same or similar position: Mupungu v Minister of Justice, Legal and Parliamentary Affairs & Ors CC07-21.

In other words, the general right to protection of the law simpliciter no longer exists or is not to be found in section 56(1) of the Constitution.

Thus, in Nkomo v Minister of Local Government, Rural & Urban Development & Ors 2016 (1) ZLR 113 (CC) …, it was stated:

“The applicant has made no allegation of unequal treatment or differentiation. He has not shown that he was denied protection of the law while others in his position have been afforded such protection. He has presented the Court with no evidence that he has been denied equal protection and benefit of the law.”

One cannot, with the greatest respect, help but remark, in passing, that, if a narrow interpretation is given to section 56(1) of the Constitution as a general anti-discrimination provision, then, it will appear to be a replication of subsection (3) which is a comprehensive anti-discrimination provision.

Given that, in the former Constitution, a general protection of the law provision existed together with a narrow anti-discrimination clause, it would appear strange that the current Constitution would broaden the specific anti-discrimination provision (sub-section 3), back it up with a general anti-discrimination clause (sub-section 1) and discard the general protection and benefit of the law!

In the instant application, the applicant does not cite the law or circumstances upon which he was entitled to protection. He merely says, in his founding papers, that “the actions of the respondents…, denied me the equal protection and benefit of the law as guaranteed in section 56(1).”

However, it has been shown above already, that, the applicants could not possibly violate this right by obeying a court order or by allegedly failing to fulfil a constitutional obligation ostensibly imposed by section 147 of the Constitution as this section is merely declaratory of the fate of pending business upon dissolution of the legislature.

It imposes no exclusive obligation on Parliament or the President.

Had there been any discernible or demonstrable lapse in fulfilling a constitutional obligation, the applicant would have had a speedy remedy in terms of section 167(2)(b) of the Constitution and it would have been completely unnecessary to invoke section 56(1) of the Constitution - all be it just to embellish the claim.

As a result, the applicant's contention fails on the first hurdle and there is no need to enquire into whether he managed to allege, as precedent currently makes it mandatory, that another person in a similar position as himself was afforded the protection or benefit of the law.

Therefore, I am unable to find, that, the applicant's rights, in terms of section 56(1) of the Constitution were violated at all.

However, counsel for the applicant's contention, that, the right to equal protection and benefit of the law, under the current Constitution, is broader or equivalent to the right under the former Constitution, may well have merit, and the Court, in a proper case, may have the opportunity to revisit and interrogate this issue further.

For, one may ask: how can a right such as the general protection and benefit of the law, a right so notorious and screamingly loud in our jurisprudence, simply disappear without as much as a whimper?

Some have suggested that it has diffused into the expansive Bill of Rights that the current Constitution boasts of, but, without pointing out the exact nooks and crannies wherein it now snugly resides.

Could it be that this right is hiding, in plain sight, under section 56(1) of the Constitution?

That this right, like a binary system of stars, consists of two or even more rights closely held together by gravitational attraction and orbiting so tightly, that, from a distance, it appears as just one right, one star?

Sooner, rather than later, this Court, in my respectful view, must find a proper home for this right and stop its ghost-like wandering or formerly declare its existence or re-incarnation in terms of section 47 of the Constitution, which unambiguously states:

“Section 47 Chapter 4 does not preclude existence of other rights

This Chapter does not preclude the existence of other rights or freedoms that may be recognised or conferred by law, to the extent that they are consistent with this Constitution.”...,.

The applicant has failed to satisfy this Court that there was indeed a failure by either the second or the third respondent to fulfil a constitutional obligation. The respondents could not have violated section 147 of the Constitution because the Bill never lapsed.

Furthermore, by reason of the finality of the order in CC04-20, it is now beyond impugnment.

Equally, the order in CC04-20 was limited to the declaration of invalidity that was stated. This Court only invalidated the passage of the Bill by the Senate. It did not extend the invalidity to the gazetting of the same Bill by the third respondent. Thus, there was no need for the Bill to be “re-gazetted” after the Senate had conducted another vote on it.

For completeness, I also reject the applicant's contentions that his right in section 56(1) of the Constitution was violated....,.

In the result, the following order is made:

1....,.

2. The application is hereby dismissed with costs.

All the parties in the instant application prayed for costs to be awarded in the event of their respective successes.

Rule 55(1) of the Constitutional Court Rules codifies this Court's general approach to costs. It provides as follows:

“(1) Generally no costs are awarded in a constitutional matter:
Provided, that, in an appropriate case, the Court or the Judge, as the case may be, may make such order of costs as it or he or she deems fit.”

Thus, Rule 55(1) of the Constitutional Court Rules is not immutable. It may be departed from where the circumstances of the case warrant a departure. It is broader in scope than Rule 55(5) which further underlines and particularizes the exercise of this exception by focusing on the conduct of the parties or their legal practitioners.

It reads:

“(5) This rule shall not derogate from the power of the court or a Judge to make any other order to or give any direction, whether as to costs or otherwise, arising out of the conduct of a party or legal practitioner.”

In the case of Liberal Democrats & Ors v President of the Republic of Zimbabwe & Ors CC07-18…, unwarranted attacks made on other litigants, witnesses, or judicial officials were considered as an exceptional circumstance to the general rule on costs.

The rationale for awarding costs against a litigant who employs scurrilous language was stated in Moyo & Ors v Zvoma NO & Anor 2011 (1) ZLR 345 (S), wherein MALABA DCJ…, stated, that, a court may decline to award costs where a litigant used language which:

“Offended its sense of fairness and justice for the Court to be put in a position in which it had to read through all the papers containing some of the impolite and discourteous language.”

See also Attorney-General v Siwela SC20-17…, where CHIDYAUSIKU CJ followed the approach laid down in Moyo & Ors v Zvoma NO & Anor 2011 (1) ZLR 345 (S).

I also find the remarks of the learned former Chief Justice, GUBBAY CJ, in Chivinge v Mushayakarara 1998 (2) ZLR 500 (S)…, to be apt to reproduce here in extenso:

“Before concluding, I feel obliged to express my strong disapproval of the many unnecessarily offensive and contemptuous remarks made of NSSA and its personnel in the sets of affidavits deposed to by the appellant in both proceedings. These affidavits were drawn for the appellant by his legal practitioner, Mr Biti, who happened to represent the appellant before the staff appeals committee of NSSA on 23 October 1996.

The affidavits make reference to a 'kangaroo internal appeals committee'; 'a recent kangaroo meeting between the so-called board of appeals'; and to one of NSSA's officers being 'tainted with turpitude'.

NSSA is accused of 'treating the labour laws of the country with contempt' and, in another instance, of 'pure ignorance of the labour laws of the country'.

Some of the averments made on NSSA's behalf are termed 'spurious'; 'ridiculous'; 'ludicrous'; 'preposterous'; and 'absurd'.

Finally, there is the implied aspersion, that, in seeking to terminate the appellant's employment on notice, NSSA did not adhere to 'the basic values of morality, decency, and good faith.'

For a legal practitioner to put such disparaging and insulting language into the mouth of a deponent is improper and reflects a total lack of restraint. It sullies the reputation for propriety and dignity that the legal profession in this country is so anxious to preserve.”

In his founding affidavit, the applicant states, that, in CC04-20, this Court gave Senate a “generous backdoor relief.”

The third respondent rightly characterises that statement as casting “aspersions of improper conduct on [this] Honourable Court.”

The applicant further refers to the court as “breaching its own written standards.”

As if that was not scandalous enough, in his answering affidavit, the applicant goes on overdrive describing the Judiciary as the “gatecrasher” of constitutionalism and the Constitution.

Furthermore, in his heads of argument, in response to the amicus heads of argument, counsel for the applicant describes the amicus as having clearly taken “a dangerous, toxic, and subjective side.”

The applicant clearly employs invective language with reckless abandon. That is uncouth.

Such language undermines the objectivity of the parties in addressing the constitutional issues. The applicant's papers were done by his legal practitioner…,.

As GUBBAY CJ stated, in Chivinge v Mushayakarara 1998 (2) ZLR 500 (S), it is improper for a legal practitioner to put such disparaging and insulting language into the mouth of a deponent and reflects a total lack of restraint.

Accordingly, I hold, that, the applicant's language necessitates a departure from the general rule of costs in constitutional matters. Therefore, I will award costs against the applicant....,.

On the issue of costs, I have concluded, that, the invective language used by the applicant and his legal practitioner calls for an adverse order of costs....,.

1....,.

2. The application is hereby dismissed with costs.