MATHONSI
JA:
By
order
dated
8
June
2022,
the
High
Court
[“the
court
a
quo”]
issued a mandamus
in
terms of which the appellants were compelled to submit a Bill
necessary
to give effect to section 106(3) of the Constitution of Zimbabwe
[“the Constitution”] for
consideration
by Cabinet by no later than forty-five days from the date of the
order.
Section
106(3)
requires an Act of Parliament prescribing a code of conduct for
Vice-Presidents,
Ministers
and Deputy Ministers to be promulgated. Given that no such Act of
Parliament is
currently
in existence, the respondent filed an application a
quo
contending
that it was the
responsibility
of
the
appellants
to
introduce
the
Bill necessary
to
give
effect
to section
106(3).
The
application was strenuously opposed by the appellants but despite
such
opposition,
the court a
quo
granted
it aforesaid.
Aggrieved,
the appellants appealed to this
Court.
On
6
June
2023,
this
court
heard
submissions
from
counsel
on
appeal
from
counsel
after which the
court
issued
the
following order:
“IT
IS
ORDERED
THAT:
1.
The
appeal
be
and
hereby allowed
with
costs.
2.
The
judgment
of
the
court
a
quo
in
its
entirety
be
set
aside
and
substituted
as
follows:
'The
application
for a mandamus
order
be and
is
hereby
dismissed with costs.'”
The
court
indicated
that
the
reasons
for
judgment
would
be
furnished
in
due
course.
What follows hereunder are those reasons.
THE
FACTS
The
first appellant is the Minister of Justice, Legal and Parliamentary
Affairs,
while
the
second
appellant
is
the
Attorney
General.
The
respondent,
Nyasha
Chiramba,
is
a
law
student
who
introduces
himself as a firm
believer
in
human
rights.
The
respondent
filed
a
constitutional
application
in
the
court
a
quo
for
a
mandamus
compelling
the
appellants
to
comply
with
section
106(3)
of
the
Constitution
of
Zimbabwe
2013
[“the Constitution”] by initiating the process of enacting the
Act contemplated in the
subsection.
The
respondent asserted locus
standi
to
bring the application on the basis that he
has
an
interest in enforcing
compliance
with the supreme
law
of
the
land.
Section
106(3)
of
the
Constitution
provides:
“106
Conduct
of
Vice-Presidents,
Ministers
and
Deputy
Ministers
(1)...
(2)...
(3)
An
Act
of
Parliament
must
prescribe
a
code
of
conduct
for
Vice-Presidents,
Ministers
and
Deputy Ministers.”
In
the court quo,
the respondent averred that the first appellant is the Minister
responsible
for overseeing the Constitution, Bills and other legal matters on
behalf of the
Government.
He also averred that the second appellant is responsible for drafting
legislation
on
behalf
of
the
Government of Zimbabwe.
The
respondent
asserted
that
even
though
more
than
seven
years
had
passed
after
the
promulgation of the Constitution, the appellants have not enacted the
Act of Parliament envisaged in section 106(3) of the Constitution.
In
his view, Parliament could only exercise its
prerogative
of enacting the Act of Parliament after the introduction of a Bill to
it through
publication
in the Government Gazette.
Thus, so the respondent stated, the failure to enact the
Act
of Parliament envisaged by section 106(3) was a breach of the
Constitution falling squarely on
the
shoulders
of the appellants.
The
respondent strongly advanced the claim that it was the first
appellant's
obligation
to
introduce
and
promote
a
Bill
designed
to
give
effect
to
section
106(3)
of
the
Constitution.
To justify his claim that the Act of Parliament contemplated in
section 106(3) was
overdue,
the respondent made reference to incidents involving Vice-Presidents
and Ministers
which
he considered to have involved questionable conduct, which conduct
could have been
dealt
with
in
terms
of
the
envisaged Act of Parliament,
had
it been in place.
PROCEEDINGS
BEFORE
THE
COURT
A
QUO
In
motivating the application, the respondent averred that he had
established a
right
in terms of section 106(3) of the Constitution. To him, the continued
delay in the initiation of
the
process to enact the Act of Parliament potentially leaves public
officials unaccountable to
the
people.
Finally,
he
averred
that
there
was
no
other
remedy
available
to
him
which
could
move
the
appellant
to
give
effect
to
section
106(3)
of
the
Constitution
other
than
approaching
the
court
a
quo,
as
he did.
As
already stated, the appellants opposed the application for a
mandamus.
The
first
appellant denied that the President of Zimbabwe assigned to him the
specific function of
enforcement
and
harmonisation
of
the
Constitution.
He
also
denied
that
he
has
a
duty
to
prepare
and
initiate legislation, which duty, to him, lies with Cabinet and
Parliament. He specifically
denied
that
he
has
an
obligation
to
initiate
the
enactment
of
the
Act
of
Parliament
contemplated
in
section
106
of
the
Constitution.
The
first
appellant
also
denied
that
section
106(3)
bestows
a
right
on
the
appellant
and
accordingly urged the
court
to
dismiss
the
application.
For
his part, in his own opposing affidavit, the second appellant cited a
portion
of
the respondent's founding affidavit to make the point that no
relief whatsoever was sought
against
him,
which
assertion
was
however,
controverted
by
the
respondent.
The
second
appellant
also noted that in several paragraphs of the founding affidavit and
in the first two
paragraphs
of the draft order, the respondent had sought relief against him even
though from
his
reading of the founding affidavit, the respondent had said he would
not seek relief against
him.
The
second
appellant
denied
that
he
was
under
a
constitutional
obligation
to
enact
the
law
in
question.
I
have
said
that
the
court
a
quo,
issued
an
order
on
8
June
2022.
It
subsequently
furnished
reasons for judgment to the parties, in which it found that the
respondent had the
requisite
locus
standi
to
file the application. The respondent's locus
standi
had
been put in
issue.
On
the
preliminary
point
taken
by
the
appellants
that
there
was
a
non-joinder
of
the
Parliament of Zimbabwe or Cabinet, the court a
quo
held
that the non-joinder of the
Parliament
of Zimbabwe or Cabinet had no adverse effect on the matter that was
before it. In
making
that conclusion, the court a
quo
relied
on the provisions of Rule 32(11) of the High Court
Rules,
2021.
On
the
merits
of
the
application,
the
court
a
quo
found
that
the
Act
contemplated
by
section
106(3)
of
the
Constitution
can
only
be
introduced
by
a
“public
bill”.
It
found
it
inconceivable
that a member of Parliament who is not a Cabinet member can introduce
a Bill
in
the National Assembly which deals with, as well as defines, the
conduct of public office
holders
such
as
Vice-Presidents,
Ministers
and
Deputy
Ministers.
The
court
a
quo
also
made
a
finding
that the first appellant did not deny that the responsibility to
introduce the Bill in
question
was
one of his functions.
In
respect of the second appellant, the court a
quo
held
that he could not be
treated
differently from the first appellant by virtue of his advisory role
to the Government.
It
reasoned
that he should have picked upon section 106(3) of the Constitution
and rendered the
necessary
advice
to
the
Government
on
its
remit.
Accordingly,
the
court
a
quo
stated
that
both
appellants
“stood
convicted
of
serious
dereliction
of
duty
in
so
far
as
the
actualisation
of
[section
106(3)
of
the
Constitution]
is
concerned”.
It
concluded
that
the
appellants
had
turned
a
blind
eye
to
their
constitutional
obligations and
had
no
defence
to the application.
The
application was thus granted and the court a
quo
issued
an order in the
following
terms:
“IT
IS
ORDERED
THAT:
1.
The respondents be and are hereby ordered to submit to the Cabinet
for consideration
the
Bill
envisaged
by
section
106(3)
of
the
Constitution
of
Zimbabwe
within
forty-five
days
from
the
date of this order; and
2.
No
order
as
to
the
costs.”
PROCEEDINGS
BEFORE
THIS
COURT
Aggrieved
by the judgment of the court a
quo,
the appellant noted this appeal
on
the
following sole
ground
of appeal:
“The
court
a
quo
misdirected
itself
and
erred
in
law
in
finding
that
the
Appellants
either
individually
or collectively have an obligation to initiate a Bill of Parliament
for
submission
to Cabinet which will give effect to section 106(3) of the
Constitution of
Zimbabwe,
in circumstances where the Constitution itself does not place such a
duty
on
the
appellants,
either
individually
or
collectively.”
The
sole
issue
arising
for
determination
is
whether
or
not
the
appellants
have
an
obligation
of initiating the enactment of the Act of Parliament envisaged in
section 106(3) of the
Constitution
either individually or collectively.
This
issue stems from a consideration of the
first
requirement
of
a
mandamus,
being,
whether
or
not
the
respondent
established
a
clear
right.
Ms
Zvedi,
for the appellants, submitted that section 106(3) of the Constitution
does
not,
in
any
way,
make
it
the
duty of
the
appellants
to
initiate
the
law
contemplated by
it.
She
contended that the decision of the Constitutional Court in the case
of
Chironga
and
Anor
v
Minister
of
Justice,
Legal
and
Parliamentary
Affairs
and
Others
CCZ
14–20 relied upon by the respondent did not support the proposition
that it was the
responsibility
of the two appellants to initiate the law in question.
In
her view, the Chironga
case
simply outlined the process of law-making and the point that it is
Cabinet that makes a
policy
that a certain law is to be made. Counsel submitted that the
references to the “relevant
minister”
in
the
law-making
process
arise
when
Cabinet
has
come
up
with
a
decision
to
make
a
law
and
the
principles
are
referred
to
the
Minister
responsible
for
the
administration
of
the
particular
legislation.
More
importantly,
Ms
Zvedi
noted
that
Statutory
Instrument
108
of
2018,
being
the
Assignment of Functions [Minister of Justice, Legal and Parliamentary
Affairs] Notice,
2018,
on which the respondent placed reliance to impute an obligation on
the appellants was
repealed.
She noted that the subsequent Statutory Instrument that is Statutory
Instrument 226
of
2018
does
not
assign
the
administration
of
the
Constitution
to
the
Minister
of
Justice.
Instead,
so
it
was
argued,
the obligation
to
come up with the
Bill
to
be
enacted
is
on
Parliament.
Regarding
the
question
of
whether
the
second
appellant
has
a
duty
to
initiate
the
Bill
in question, Ms Zvedi
referred
to section 114 of the Constitution which provides for the duties
of
the Attorney General. She submitted that the Attorney General has not
been assigned the
duty
sought to be imputed on him in any legislation.
Accordingly,
Ms Zvedi
prayed
that the
appeal
be
allowed.
In
response,
Mr
Mandinde
conceded
the
point
that
the
Assignment
of
Functions
[Minister
of Justice, Legal and Parliamentary Affairs] Notice, 2018 [Statutory
Instrument 226
of
2018]
did
not
include
the
Constitution
of
Zimbabwe
as
an
Act
of
Parliament
assigned
to
the
first
appellant
for
administration.
He
conceded
that
section
106(3)
of
the
Constitution
does
not
place
an
obligation on the appellants to come up with the legislation in
question suggesting instead
that
the
obligation is given to Cabinet.
Mr
Mandinde
sought,
however, to argue that there is an Inter-Ministerial Task
Force
for
Legislation,
which
the
first
appellant's
Ministry
is
responsible
for.
He
submitted
that
the second appellant, as Attorney General, was the leader of the
Inter-Ministerial Task Force.
He
added that the first appellant's Ministry is also in charge of
constitutional affairs. On this
basis,
counsel was of the view that the removal of the Constitution from the
list of Acts of
Parliament
under the administration of the first respondent did not remove the
responsibilities
pertaining
to constitutional affairs from him.
In
respect of the second appellant, Mr Mandinde
submitted
that
he retains
the
duty of legal
drafting.
Although
counsel for the respondent could not point out the second appellant's
obligation,
if
any,
in
respect
of
the
Act
of
Parliament
contemplated
by
section
106(3),
he
surprisingly
did
not
concede the
appeal
but stuck
to
his guns,
even
though
they
had
long stopped
blazing.
THE
LAW
It
is not in dispute that the application placed before the court a
quo
was
essentially
for a mandamus.
The
principles governing the issuance of mandatory interdicts in
constitutional
matters were discussed by Du Plessis, Penfold and Brickhill in
Constitutional
Litigation,
2013,
at 123.
I
recite
the
observations
by
the
authors:
“In
constitutional cases, a court may grant a final interdict (either
prohibitory or
mandatory)
whenever
it
is
just
and
equitable
to
either
compel
a
person
to
do
something
or
to refrain from doing something. Although they are not bound by the
common-law
test
for
final
interdicts,
our
courts
generally
apply
the
common-law
test
in
constitutional
matters.”
The
position outlined above was followed by our Constitutional Court in
the
case
of
Chironga
&
Anor
v
Minister
of
Justice,
Legal
&
Parliamentary
Affairs
&
Others
CCZ
14–20.
HLATSHWAYO
JCC, at pp.15–16, held that:
“A
mandamus is a judicial remedy available to enforce the performance of
a specific
statutory
duty
or
remedy
the
effect
of
an
unlawful
action
already
taken...
The
requirements
the
applicants must prove
for
a
mandamus
are
that:
(1)
A
clear
or
defin[ite]
right
— this
is
a
matter
of
substantive
law.
(2)
An
injury
actually
committed
or
[reasonably]
apprehended
— an
infringement
of
the
right
established and
resultant
prejudice.
(3)
The
absence
of
a
similar
protection
by
any
other
ordinary
remedy.”
In
respect
of
the
first
requirement
for
the
grant
of
a
mandatory
interdict
itemised
above,
the
learned
Judge
of
the
Constitutional
Court
instructively
discussed
the
law
as
follows:
“With
regard to the first requirement, according to Herbstein
& Van Winsen The Civil
Practice
of
the
High
Courts
of
South
Africa
5th
Edition,
at
p1457,
whether
the
applicant
has
a
right
is
a
matter
of
substantive
law.
The
authors
state
that
one
has
to
prove
a
clear
and
definite right in terms of substantive law, a right which can be
protected, a right
existing
at
common
law
or
statutory
law.
The
applicants
right
is
derived
from
constitutional
law. Section 167(5) of the Constitution gives the applicants a right
to
enforce
compliance with section 210 to ensure that the Act contemplated by
the section is
enacted.
The
applicant's
rights
also
arise
automatically
in
law,
through
section
210.
According
to
the
authors,
it
is
unnecessary
for
the
applicant
to
allege
any
facts
in
order
to
establish the rights, when a right arises automatically at law, more
so in the case of
constitutional
rights.
In
that
regard,
the
first
requirement
for
a
constitutional
mandamus
has
been
established.”
Where
the requirements of a mandamus
are
satisfied in a constitutional matter,
a
court
is
bestowed
with
the
power
to
make
any
order
that
is
just
and
equitable
in
terms
of
section
175(6)(b)
of
the Constitution. The
section
reads:
“(6)
When deciding a constitutional matter within its jurisdiction a court
may —
(a)...;
(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.” (The
underlining
is
for
emphasis)
In
constitutional
matters
in
which
a
mandamus
has
been
sought,
what
is
just
and
equitable
ultimately
depends
on
the
circumstances
of
the
entire
case
including
the
constitutional
duty
that
must
be
performed
as
well
as
the
reasonable
means
by
which
it
may
be
performed.
Quite
recently, HLATSHWAYO JCC, writing for a unanimous court in Gonese
v
President
of
the
Senate and Others
CCZ–2–23
at
p.24,
para.
67
stated:
“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)
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
underlining is for emphasis)
Therefore,
what all this means is that any person seeking a mandamus
in
a
constitutional
matter must prove that his or her case satisfies its requirements.
Thereupon, the
Court
is
enjoined
to
consider
the
relief
that
would
be
just
and
equitable
in
the
circumstances
of
the
case.
EXAMINATION
The
first
enquiry
to
be
made
is
whether
or
not
the
respondent
established
a
clear
right.
As
was stated in the Chironga
case
supra,
the determination of whether or not a clear
right
exists is a matter of substantive law. It is, therefore, apt to make
reference to the case of
Oil
Blending Enterprises (Pvt) Ltd v Minister of Labour
2001
(2) ZLR 446 (H) at 450B–E,
where
it
was
held,
per
CHINHENGO
J,
that:
“A
mandamus
or
mandatory interdict is a judicial remedy recognised under our law:
see
Tribac
(Pvt) Ltd v Tobacco Marketing Board
1996
(2) ZLR 52 (S). It is applied
against
public authorities. It is an order which requires a public authority
to comply
with
a statutory duty which requires a public authority to perform some
act which
remedies
a state of affairs brought about by its own unlawful administrative
action (L.
Baxter
on Administrative
Law
at
p687). It is, therefore, a judicial remedy available to
enforce
the performance of a specific statutory duty or to remedy the effects
of an
unlawful
action already taken. In this application, I am concerned with the
former —
to
order
or
not
to
order
the
respondent
to
perform
a
specific
statutory
duty
placed
upon
him.
The
remedy will be granted where the public authority is under a clear
duty to
perform
the act ordered.
In Moll
v Civil Commissioner of Paarl
(1897)
14 SC 463 at
468,
it
was stated
that:
'But
it is obvious that relief (mandatory interdict) will not be given
where such
rights
are of a doubtful nature or where the public officer has acted in
exercise
of
a
discretion
left
to
him,
but
only
where
the
existence
and
continued
infringement
of an absolute right have been clearly established.'” [Emphasis
added]
The
remedy of a mandamus
against
a public authority necessarily demands the
existence
of a clear duty imposed on the public authority. This much is evident
from the dicta
of
this
Court in
Chavunduka
and
Anor
v
Commissioner of Police and
Anor
2000
(1)
ZLR
418
(S)
at
422F
and
424C:
“What
then
is
the
appropriate
remedy
where
it
has
been
shown
that
the
police
have
not
done
something which obviously it is their duty to do — where
there has been a
dereliction
of
duty
owed
to
the
public?
The
answer
is
that
in
such
a
clear
case
the
court
will
grant
an
order
of
mandamus.
But
where
the
police
have
arrived
at
the
decision
not
to
take any action in good faith and on the basis of a proper
appreciation of the
applicable
law,
they will
not
then
incur
the risk of
judicial
intervention....
In
this matter, I am satisfied that the requirements for a mandamus are
satisfied. See
Tribac
(Pvt) Ltd v Tobacco Marketing Board
1996
(2) ZLR 52 (S) at 56B-D.
There
is
no
other
judicial
remedy
which
is
equally
or
more
appropriate.
But
it
is
not
for
this
court
to
instruct the Commissioner of Police as to the manner in which he is
to perform his
duty.
It
is
only necessary to direct him
to
do so.”
From
the above, one can safely say that where a public official has no
duty to
give
effect to a right sought to be enforced, then the remedy of a
mandamus
cannot
be relied
upon.
The
existence
of
a
duty
on
the
part
of
a
public
official
to
give
effect
to
the
right
in
question
is
an
inherent
precondition
embedded in the
requirement
for
a
clear
right.
The
question that thus arises is: do the appellants have an obligation to
initiate
a
Bill designed to give effect to section 106(3) of the Constitution?
To
obtain the answer to this
question,
one must interpret section 106(3)of the Constitution.
It
is settled law that in constitutional
interpretation,
the ordinary meaning of the words employed in a statute should be
strictly
adhered
to unless that would lead to an absurd result. See Mavedzenge
v Minister of Justice,
Legal
& Parliamentary Affairs and Others
CCZ–5–18
at p.6 and Shumba
and Others v
Minister
of
Justice, Legal and Parliamentary
Affairs
and Others
CCZ–4–18.
Turning
to section 106(3) of the Constitution, one notes that there is
nothing in that
provision
suggesting
that
either
of
the
appellants
has
an
obligation
to
initiate
the
contemplated
Bill.
The
provision simply states that there must be an Act of Parliament that
must prescribe a
code
of
conduct
for
Vice-Presidents,
Ministers
and
Deputy
Ministers.
Apart
from
this,
there
is
hardly
any
other
provision
in
the
Constitution
suggesting
that
the
appellants
have
an
obligation
to
initiate
a
Bill
necessary to give effect to section 106(3).
In
attempting to establish a basis upon which he could impute the
obligation to
initiate
the Bill in question on the appellants, and notwithstanding that he
had not pleaded this
in
his
application,
the
respondent
belatedly
sought
to
argue
before
this
court
that
the
administration
of the Constitution of Zimbabwe was assigned to the first appellant
by the
Assignment
of Functions (Minister of Justice, Legal and Parliamentary Affairs
Notice, 2018
[Statutory
Instrument
108
of
2018].
That
is
correct.
However,
at
the
time
the
application
a
quo
was
filed the Assignment of Functions (Minister of Justice, Legal and
Parliamentary Affairs
Notice,
2018 was no longer extant. It had been repealed by the Assignment of
Functions
(Minister
of Justice, Legal and Parliamentary Affairs) Notice, 2018 [Statutory
Instrument 226
of
2018].
Statutory
Instrument
226
of
2018
omits
the
Constitution
of
Zimbabwe
as
one
of
the
Acts assigned to the Minister of Justice, Legal and Parliamentary
Affairs.
This
means that
the
administration
of
the
Constitution
of
Zimbabwe
is
not
assigned
to
the
first
appellant.
It
was,
therefore,
futile for the respondent to attempt to establish a basis for his
application in the
Assignment
of Functions (Minister of Justice, Legal and Parliamentary Affairs)
Notice, 2018
when
the
current
notice
provided
no
such
basis.
In
the absence of a clear statutory provision imposing on the appellants
the
responsibility
of initiating a Bill designed to give effect to section 106(3) of the
Constitution, the
respondent
had no and could not legally establish a clear right. The respondent
could not, as a
matter
of
right,
demand
the
appellants
to
initiate
the
Bill
in
question.
The
court
a
quo,
therefore,
erred
in
granting a
mandamus
in
the
absence
of a
clear
right.
Once
the finding is made that the respondent had no clear right, it
becomes
unnecessary
to
establish
the
other
requirements
of
a
mandamus,
which,
in
any
event,
are
not
in
dispute.
For
completeness,
I
note
that
the
Constitution
identifies
who
has
the
responsibility
of
initiating
legislation.
All
the
respondent
had
to
do
was
to
identify
the
functionary
upon
whom
the
responsibility
to
prepare,
initiate
and
implement
legislation
lies.
It
is
only
to
the
functionary
on
whom
the
Constitution
placed
an
obligation
to
prepare
legislation
that
the
respondent
had
to
turn
for
the
fulfilment
of
the
provisions
of
section
106(3)
of
the
Constitution,
needless
to
say
in accordance with
the
set
procedural rules.
DISPOSITION
The
appellants demonstrated that there is no provision of the
Constitution
placing
an obligation on them to initiate and prepare the Bill that is
necessary to give effect to
the
provisions of section 106(3) of the Constitution. Under the
circumstances, there was no basis
upon
which the appellants could be ordered to initiate the Bill in
question.
The
court a
quo,
thus,
fell into error by granting the mandatory interdict in the absence of
a statutory basis for
doing
so.
Accordingly, the appeal had
to
be allowed.
It
is
for
the
foregoing
reasons,
that
the
court
issued
the
order
mentioned
above.
GWAUNZA
DCJ:
I
Agree
KUDYA
JA: I
Agree
Civil
Division
of
the
Attorney
General's
Office,
appellant's
legal
practitioners
Zimbabwe
Human
Rights
NGO
Forum,
respondent's
legal
practitioners
