Constitutional Rights re: Equal Protection of the Law, Non-Discrimination, Positive Discrimination and Classification

HH99-18 : C F (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

This is an appeal against four amended income tax assessments number 20211442 for the year ending 31 December 2009; 20211443 for the year ending 31 December 2010; 202211446 for the year ending 31 December 2011; and 20211448 for the year ending 31 December 2012 that were issued against the appellant by the respondent on 27 June 2014….,.

On 25 July 2014, the appellant objected to the amended assessments in terms of section 62 of the Income Tax Act [Chapter 23:06]. On 22 October 2014, all the objections were disallowed save for a few relating to penalties.

The appellant gave notice of its intention to appeal on 30 October 2014 and duly filed the present appeal on 18 December 2014.

The appellant called the evidence of two witnesses, an independent tax consultant, LM, who worked for the respondent for the 16 years to 2006 and its Managing Director. In addition, it produced four voluminous documentary exhibits in excess of 500 pages, exhibits 1 to 4.

The respondent called its Chief Investigations Officer, OM, who has held that office since 2011 but with a total of 14 years experience, produced a 9 paged documentary exhibit, exhibit 5, and relied on the mandatory R11 documents.

Background

The appellant was incorporated on 29 September 1995 and underwent two name changes, on 24 April 1996 and 9 October 2014….,.

The second name change was precipitated by the acquisition of the South African registered sister company by the appellant's holding company on 1 June 2005.

Sometime in 2010…, the respondent commenced the tax compliance investigation on the appellant that resulted in the amended tax assessments that gave rise to this appeal. The appellant's main business activities in the four years in question were in the importation, distribution, and marketing of motor vehicles and spare parts of a specified brand….,.

The 1996 Distributor-Assembler Agreement

Initially, on 24 June 1997, the appellant entered into a detailed 53 article distributor-assembler three year agreement, the original agreement, with NML, a Japanese conglomerate engaged in the development, manufacture, and assembly and worldwide distribution and sale of an international brand of various models of motor vehicles and spare parts, retroactively from 1 April 1996….,.

The appellant had access to the conglomerate's trademarks, trade names, and engineering technology and was authorised to purchase, manufacture, assemble, market, distribute, and sell certain models of the brand, knocked down components, and spare parts through a network of dealers appointed by the appellant and approved by the conglomerate in Zimbabwe.

The ordering, production, shipment prices, and payment of the vehicles and components, in an amount sufficient to cover the price, was regulated by Articles 5 to 7 of exhibit 3….,.

The appellant met the full cost and expenses of the shipment and demurrage, and storage costs of the vehicles and spare parts. The risk for loss or damage passed to the appellant once the goods crossed the ship's rail at the port of shipment - but ownership and title of the goods was retained by the conglomerate until the payment obligation had been discharged.

It was discharged by payment into an L/C bank account opened in the name of the conglomerate by a bank acceptable to the conglomerate by irrevocable letters of credit at sight in favour of the conglomerate at which point the appellant simultaneously received the shipping documents for the relevant goods through that opening bank.

Because the timelines for ordering and the confirmation of the orders and payment preceded the production of the vehicles, ownership passed to the appellant on delivery of the vehicle FOB past the ship's rail at the port of shipment.

The appellant was solely responsible for securing Government licences and permits required to complete payments for and importation of the ordered goods….,.

The terms and conditions contemplated a cash before delivery sale.

The conglomerate could export and deliver to, and sell in Zimbabwe, brand vehicles in its own name through the agency of the appellant and pay the appellant for the services rendered.

The conglomerate played an active advisory role in the establishment of the appellant's business and was entitled to receive prescribed mandatory reports at specified periods and to inspect the appellant's operations.

The appellant undertook to maintain sufficient working capital and investment capital to enhance its business activities.

Each party was, in terms of Article 39-2, responsible for any and all expenditure incurred and assumed in the performance of its duties, obligations, and responsibilities.

Article 44 provided that:

“This agreement does not constitute either party as the agent or legal representative of the other party for any purpose whatsoever. Neither party is granted any expressed or implied right or authority to assume or to create any obligation or responsibility on behalf or in the name of the other party or to bind the same in any manner whatsoever.”

The appellant was also required to purchase a specified minimum number of vehicles, gain market share, and, in the event of a decline due to circumstances beyond its control, implement agreed counter measures to arrest the decline or risk termination of the agreement.

It appears to me, that, these were standard terms and conditions found in international contracts for the facilitation of international trade as demonstrated by their striking similarity with the conditions found in Lendalease Finance (Pty) Ltd v Corporacion de Mercadeo Agricola & Ors 1976 (4) SA 464 (A) especially in regards to the payment arrangements and the passing of both risk and ownership.

The 1 August 2007 Memorandum of Understanding

The appellant and the related party…, whom I shall refer in this judgment as the intermediary, signed a memorial of the procedures for importation of vehicles into Zimbabwe in the Memorandum of Understanding dated 1 August 2007.

The intermediary was required to place monthly production orders with the brand suppliers. The importation value of the consignment was reflected in a manual invoice issued by the intermediary to the appellant. The vehicles were imported into Zimbabwe and held in the appellant's bonded warehouse as consignment stock with the intermediary retaining ownership of the vehicles until payment was made. Once payment was made, the invoice was stamped by customs officials and duty and other imposts paid for the consignment by a clearing agent before ownership was transferred to the appellant. The appellant, in turn, invoiced and transferred the vehicles to an authorised dealer for sale.

The Distribution Agreement of 25 April 2011

On 25 April 2011, the appellant and the conglomerate entered into a “Distribution Agreement”…, consisting of 39 Articles with retroactive effect…, from 1 February 2007.

It appeared to be a reproduction of an incomplete Distribution Agreement dated 31 January 2007 that was only signed and initialled by the appellant's Managing Director….,.

It substituted the original agreement.

The preamble, structure, and, in most respects, the contents, mirrored word for word the original agreement. The noticeable change was the wholesale removal of the right to purchase knocked-down kits for assembling from and the transfer of technological assistance and assembly by the conglomerate to the appellant.

Articles 21, 22 and 23 mirrored word for word Articles 5, 6 and 7 of the original agreement in respect of the ordering, production, and shipment of the vehicles and spare parts.

Article 24, like Article 10 in the original agreement, dealt with the supply of spare parts whose purchase prices were computed on a cost, insurance and freight (CIF) or free on board (FOB) basis derived from a price list provided by the conglomerate.

The grounds for termination were generally similar to those in the original agreement.

The Memorandum on Sales and Purchase of the Conglomerate Vehicles of 25 April 2011

The appellant and the conglomerate entered into a memorandum on Sales and Purchases of brand vehicles with the intermediary, retroactive from 1 February 2007, soon after signing the Distribution Agreement.

The appellant appointed and the conglomerate approved the appointment of the intermediary as the intermediary for the sale and purchase of the vehicles from the conglomerate under the Distribution Agreement.

The three parties agreed that the intermediary would purchase the vehicles from the conglomerate and sell them to the appellant.

The parties all incorporated the ordering, pricing, and payment and supply of spare parts provisions in Articles 21, 23 and 24 of the Distribution Agreement. They further agreed that any violation or default of those provisions, by the intermediary, would be ascribed to the appellant.

The Management Services Agreement between the Appellant and the Intermediary of 2 March 2009

On 2 March 2009, the appellant and the intermediary entered into a Management Services/Technical Services Agreement which was governed by the laws of Zimbabwe and took effect on 1 March 2009.

They were motivated by the introduction of the multi-currency financial regime in Zimbabwe. It was to run for an indefinite period. The intermediary undertook to:

“Provide administrative services, financial services and support and logistical services and support to help appellant achieve its goals in terms of gaining market share, growth and profitability…, ensure that new developments and systems will be properly communicated together with appropriate facilitation of technical support, system materials and training…, (and) be available to provide help and guidance on any aspect of the business mentioned, at the request of appellant.”

In regards to the computation of the fees, the parties agreed that:

“The intermediary will calculate the fees based on both the turnover reported by appellant and also the level of input that has been provided in terms of this agreement. The fees to be provided for shall be 2% of turnover; however, this will not necessarily be the amount finally invoiced. The amount finally invoiced shall not exceed 4% of turnover.”

And, in respect of payment, they agreed that:

“Payment of the management fees shall ordinarily be made in the year following that on which the fees have been based on receipt of an invoice from the intermediary. For cash flow purposes, it will be permissible to make part payments, but, at least two half-yearly payments will be required.”

The implementation and operation of the agreements

The evidence of the appellant's Managing Director was that the intermediary, a Mauritian registered short-term credit financier interposed between the conglomerate and the appellant in the purchase of the vehicles and spare parts destined to Zimbabwe.

Customers in Zimbabwe would place an order on the brand model of their choice, either to the appellant or an approved dealer appointed by the appellant. The appellant would group the orders and submit a bulky order of the required stock of vehicles, four (4) months in advance, to the intermediary, which, in turn, placed orders with the conglomerate.

The conglomerate would build the ordered vehicles for the intermediary.

The intermediary would purchase the vehicles, in its own name, from the conglomerate, and consign them directly to the appellant's bonded warehouse in Zimbabwe.

The intermediary retained ownership of the consignment in bond until it was paid.

Ownership vested in the appellant upon payment of the purchase price equivalent to the value for duty purposes.

Thereafter, the appellant would, where applicable, pay customs duty, surtaxes, and VAT based on the agreed value, through a clearing agent, before the consignment was released from the bonded warehouse and delivered to the approved dealer and end user.

The appellant used to import stock from a South African related party and the conglomerate under value rulings 18 and 29 of 2001 before the advent of the French holding company. These were replaced by value ruling 15 of 2007, on 5 November 2007, following upon protracted negotiations between the appellant and the respondent that commenced on 26 March 2006….,.

A sample of the documents used in the consignment of the vehicles from the intermediary to the appellant were captured on pp14 to 38 of exhibit 2 and pp1 to 9 of exhibit 5.

These were commercial invoices, telegraphic transfers, and Zimra certificates of origin, bills of entry, and customs clearance certificates.

These commercial invoices…, denoted the intermediary as the supplier and the appellant as the purchaser and consignee.

The vehicles were fully described by model, chassis and engine number, colour, and year of manufacture.

The order number, dates of issue and delivery, method of shipment, origin and destination together with the terms of payment, the free on board purchase price, the cost of freight, insurance and total CIF price, denominated in United States dollars, were also indicated.

The certificates of origin…, certified that each vehicle was manufactured by the supplier in South Africa and bore the same information contained in the commercial invoice in regards to the supplier, consignee, and description of the vehicle.

The bills of entry…, were completed by the clearing agent and identified the intermediary as the exporter or consignor.

They identified the country of supply and destination, the description, and total invoice value of each vehicle separately from the freight and insurance charges.

The customs clearance certificates…, for each vehicle were issued by Zimra.

They contained the full description of the vehicle shown in the commercial invoice. The cost, freight, and insurance price for each vehicle sold was captured in a combined invoice…, issued by the intermediary to the appellant, which the appellant submitted to its bankers with instructions to pay the intermediary by telegraphic transfer….,.

The sequence of dates on these documents showed that an advance payment by telegraphic transfer was made on 12 February 2007, the certificate of origin was presented on 15 April 2007 while the commercial invoice was issued on 24 April 2007 and the vehicle was cleared by a bill of entry at the port of entry on 9 May 2007. Thereafter, a customs clearance certificate was issued on 19 June 2007.

It was common ground, that, the intermediary's consignment was delivered to Zimbabwe and warehoused by the appellant in bond.

It was common cause, that, the appellant did not suffer any exposure to foreign currency risk or credit risk since the end users were required to make payment before the relevant vehicles were dispatched from South Africa…, in 2009 and 2010.

However, in 2011 and 2012, the appellant was exposed to foreign currency risk through the importation of inventory, the liability of which was settled in South Africa in a carrying amount of US$264,729 and US$294,956 respectively….,.

It was common ground that the appellant received vehicle prepayments in the sum of US$2,064,187…, in 2010 that was subsequently revised to US$4,693,512…, in the 2011 financial statements, US$3,086,165 in 2011…, and US$755,673…, in 2012.

Summary of the Tripartite Arrangement

The nature and scope of the tripartite arrangement between the parties was concisely set out by counsel for the respondent in paragraph 5 of his written heads of argument.

A customer placed an order to the appellant through an approved dealer appointed by the appellant. The appellant placed orders with the intermediary, which, in turn, procured the motor vehicles from the conglomerate.

The appellant received the motor vehicles in Zimbabwe and kept them in a bonded warehouse.

Ownership of the motor vehicles remained with the intermediary until duty had been paid by the appellant.

The purchase of a motor vehicle by a customer resulted in the payment of duty to the respondent by the appellant before the vehicle was released to the customer.

The intermediary was paid the transaction value of the motor vehicle, which, according to the letter of the appellant to the respondent, of 8 August 2007, included a 5% administration charge and interest of the selling price on the price list…, in which was incorporated its mark-up of between 7.5% and 10%.

The appellant was responsible for rentals, marketing expenses, and payment of duty.

It sold the vehicles to the dealers at a mark-up of 7.5% and the dealers sold the vehicle to the end customer.

Concessions made at the commencement of the appeal hearing

At the commencement of hearing, the appellant confirmed the concession first made in the letter of 19 June 2014, that, it was remiss in failing to charge the intermediary a mark-up of 7% for transit services rendered in the sum of US$2,240 for 2009, US$2,505=87 for 2010 US$2,198=13 for 2011 and US$3,273=40 for 2012 in respect of vehicles exported by the intermediary to Zambia, Malawi and Tanzania.

Again, the appellant conceded, that, it paid management fees to the intermediary when such fees were not due in the sum of US$130,000 in 2009, US$140,000 in 2010, US$256,629 in 2011 and US$140,000 in 2012.

In the same vein, the respondent conceded, that, it wrongly raised notional interest at the rate of 24% in the sum of US$97,279=92 in respect of the 2012 loan to GS and in the sum of US$106,953=12 for 2010, US$266,879=52 for 2011 and US$124,666=80 for 2012 in respect of the loans availed to ADI.

Assessment of witnesses

The appellant acted in a devious manner in regards to management fees. Its conduct amounted to a deliberate act of transfer pricing which was done with intent to avoid tax.

The production of backdated agreements gave the impression that these were created as a response to the tax investigation.

This was apparent from the purported agreement of 31 January 2007 which had the appellant's signatures only that was rejected by the respondent and resulted in the production of duly signed agreement of 25 April 2011 backdated to 1 February 2007.

The Managing Director misled the court that the appellant provided functional analysis input under duress, contrary to his letter of 12 July 2013 in which he requested two weeks within which to provide the requested information, thus affording the appellant in excess of a month from the date of the initial request.

He disputed making prepayments to the intermediary yet the financial statements, in note 17 on p71 of exhibit 1, show that US$4,693,512 was paid in 2010 and US$3,086,165 in 2011 before the vehicles were exported in bond.

He falsely averred, and thus copied the evidence adduced by the Tax Consultant in his presence, that, the audits for his company commenced in November of each year in contradistinction to the timelines indicated in the audit engagement letter.

The tax consultant prevaricated on what the respondent's generally prevailing practice in regards to provisions was.

The chief investigations officer failed to demonstrate how he arrived at the apportionment ratio he used in his functional analysis. He testified that the appellant misled the respondent by claiming ownership of the consignment stock at the time he applied for the value ruling, contrary to the contents in the letters written by the appellant at that time.

The issues referred for determination

At the pre-trial hearing of 2 June 2015, the following issues were referred for determination. In view of the concessions made by the respondent at the commencement of trial, it is no longer necessary to outline in respect of the loans advanced by the appellant to GS and ADI.

Sharing of profits/transfer pricing

1. Whether or not the respondent is precluded from adopting its current stance on this issue on account of either:

1.1 The value ruling issued by it; or

1.2 The fact that duties and taxes were assessed and paid to it on a different basis.

2. Whether the respondent is entitled to invoke section 24 of the Act to deem income to have accrued to the appellant which was not actually received by it.

Expenses relating to Leave Pay and Audit Fees

1. Whether it was proper of the appellant and open to the appellant to make provision for the costs in question.

2. Whether the respondent was precluded from issuing amended assessments by virtue of the provisions of section 47 of the Act.

Penalties

1. What, if any, penalties are payable to the respondent.

I proceed to deal with each issue in turn....,.

Penalties

It was common ground that penalties are imposed by virtue of section 46 of the Income Tax Act, and, in the present matter, were derived from subsection (1)(b) and (c), (4) and (6) of section 46 of the Income Tax Act.

Initially, the respondent imposed 100% penalties, but, on objection, it reduced the penalty on the provisions to 50% and maintained the penalties in respect of the failure to deduct the correct amounts for marketing, promotion, and advertising in the purported profit sharing arrangement, the omission to levy interest on subsidiaries, and the deduction of management fees at 100%.

The argument advanced by counsel for the appellant, that, the obligation to pay tax only arose after the adjustments had been invoked under section 24 of the Income Tax Act was incorrect.

Section 24 of the Income Tax Act is invoked after the self-assessment, which is deemed to be the assessment by the Commissioner, has been filed.

The purpose of section 24 of the Income Tax Act is to determine whether the taxpayer paid the correct tax in the self assessment. Any shortfall disclosed by the invocation of section 24 of the Income Tax Act relates to the self-assessment and not to a new assessment.

In my view, the obligation to pay the correct tax arose when the self-assessment return was made and not at the time of re-assessment when the shortfall was discovered. Accordingly, the provisions of section 46 of the Income Tax Act cover the infractions committed by the appellant.

The imposition of penalties at 100% is done only where the appellant is found to have fallen foul of the provisions of section 46(6) of the Income Tax Act by omitting an amount which should have been included in the return or by rendering an incorrect statement or failing to disclose any relevant fact which results in the payment of less tax than would otherwise be due with intent to evade tax.

Where such an intention is missing, then, the Commissioner or the Court, on appeal, has a discretion on the quantum of penalty to impose.

Since this is an appeal in the wider sense, I am at large on penalty.

The appellant was generally a good corporate citizen which paid its fair measure of taxes. It co-operated with the respondent during the 4-year fatiguing and disruptive investigation which took its toll on management time and company resources. The objection letter and subsequent letters of 22 September 2014, 27 October 2014, and 14 November 2014 disclosed the financial stress the appellant experienced which contributed to the eventual loss of the franchise just before the objection was filed with the Commissioner.

The appellant's position on its relationship with two local related parties was only conceded by the respondent's counsel in his opening remarks at the commencement of the appeal hearing.

I am obliged to look into the interest of the wider community.

In Commissioner of Taxes v F 1976 (1) RLR 106 (AD)…, MACDONALD JP described tax avoidance in strong language as an evil.

The imposition of penalties in fiscal infractions is predicated on both individual and general deterrence. Every taxpayer is required to shoulder its fair share of the tax burden for the common good. The level of moral turpitude of the taxpayer is measured against its good points to arrive at an appropriate penalty.

In Elite Wholesale (Rhodesia) (Pvt) Ltd v Commissioner of Taxes, Southern Rhodesia (1955) 20 SATC 33 (SR)…,.; 1955 (1) SA 350 (SR) equated “an intention upon the part of the purchaser or seller to evade assessment or tax” with “something which shows a lack of good faith or the presence of “moral dishonesty in the taxpayer's mind.”

Management Fees

The appellant vehemently maintained and asserted throughout the investigations, and in the letter of 14 March 2011, 30 May 2012, 19 June 2014 and the objection of 25 July 2014, against all odds and the available evidence, that, the intermediary had provided management services in strategy setting, pooling funds, and purchasing power from Mauritius in behalf of head office senior management.

It only abandoned the claim on 14 November 2014.

In that letter, the Managing Director made three telling and disingenuous points:

(i) The first was that the intermediary was, through a legal oversight, substituted for the holding company in the management fees/technical fees agreement of 2 March 2009.

(ii) The second was that the management fees were remitted to the holding company through the intermediary.

(iii) The third, which was also reiterated during the cross-examination of the Chief Investigations Officer, was that the only management fees ever paid were in the sum of US$130,000 reported in the 2010 financial statements while amounts reflected in the other years were provisions which were written back in subsequent years without any prejudice to the fiscus.

The Managing Director failed to demonstrate, by any hard evidence, the management intervention that was undertaken by the holding company or to explain why the management fees remained a continuing obligation payable to the intermediary in the 2011 and 2012 financial statements.

These prevarications eclipsed the good points exhibited by the appellant over the four years that it was under investigation.

The concession, however, demonstrated that the appellant made an incorrect return in respect of claims for management fees in each of the affected tax years.

It seems to me, that, the unsupported persistent assertions maintained by the appellant, even after the concession of 14 November 2014, were indicative of both corporate moral dishonesty and a lack of good faith.

I therefore find, that, the appellant, through the mind of its management, evinced the intention to evade the payment of the correct amount of tax as contemplated by section 46(6) of the Income Tax Act by claiming the deduction of management fees paid to the intermediary who was not entitled to such fees.

The Court or the Commissioner have no option but to impose a 100% penalty.

The penalty imposed by the Commissioner is accordingly confirmed.

The wording of section 46(1)(b) and (c) of the Income Tax Act incorporates within its ambit the amounts adjusted under section 24 of the Income Tax Act on rentals, marketing, advertising, and promotion charges.

These would not have affected the appellant's tax position for the reason that the intermediary would have incorporated them in the CIP price and passed them to the appellant who would have been entitled to deduct them from his income.

There would not have been any moral turpitude attached to the appellant's deduction of the amounts representing 39% of the fair share of the intermediary's expenses.

In these circumstances, the imposition of any level of monetary penalty would be wholly unjustified. I would have waived it in full.

The Leave and Audit Fee Provisions

The Tax Consultant called by the appellant was aware that the respondent disallowed leave pay provisions and audit fees in the tax year that they were made. However, the evidence disclosed that the appellant accessed the Assessors Handbook and genuinely believed that the respondent allowed deductions of these provisions.

It clearly lacked the intention to evade tax and was thus eligible for remission of penalty.

The amounts involved in each of the 4 years were minimal. The moral turpitude of the appellant was minimal.

It seems to me that a penalty of 10% in respect of each year for each head is appropriate.

The Tax Amnesty

It was common cause, that, the tax amnesty was not raised in the letter of objection of 25 July 2014 for the reason that it had not yet come into existence at that time.

The appellant raised it in paragraph 72 of its case on 18 December 2014 and the respondent responded to it in paragraph 43 of the Commissioner's case.

It was promulgated under the authority of section 23 of the Finance Act (No.2) of 2014 in the Finance Act (Tax Amnesty) Regulations 2014, SI163 of 2014 on 21 November 2014.

It exempted errant taxpayers, whose applications were approved, from paying any additional tax, penalty, or interest on the amounts for which the amnesty was granted.

It was common cause that both section 19 of the Finance Act and section 8 of the tax amnesty regulations, S.I.163 of 2014 specifically precluded from their ambit any taxpayers who had paid tax or rendered a return or declaration or had been assessed.

It was again common cause, that, the appellant fell into the category of taxpayers who were excluded from the ambit of the tax amnesty, and, as a result, did not apply for the amnesty.

At the tail end of his oral submissions, counsel for the appellant moved the Court, in terms of the proviso to section 65(4) of the Income Tax Act, to consider the introduction of the tax amnesty argument, which had not been raised in the notice of objection, on two grounds:

(i) The first was that it was physically and legally impossible to raise it in the objection; and

(ii) The second was that such exclusion offended the appellant's constitutional right to equal treatment, protection, and benefit of the law enshrined in section 56(1) and (6) of the Constitution.

Counsel for the respondent opposed the application on the ground that the constitutional argument was constrained by the absence of evidence on the point.

In both his written and oral submissions, counsel for the appellant emphasized, that, the enactment of the tax amnesty under consideration was constitutional, but, that the denial of the tax amnesty benefit to certain categories of taxpayers was unconstitutional.

In paragraph 108 of his written heads, counsel submitted that “if the tax amnesty is to be treated as being constitutional, and the concession is repeated that it is within the terms of the Constitution permissible to grant such an amnesty, it must apply to the appellant, who therefore cannot be obliged to pay penalties and interest on any unpaid taxes raised in an amended assessment as in the present case.”

In the alternative, he urged this Court to exercise its sentencing discretion in favour of the appellant by extending the benefits embodied in the tax amnesty legislation to the appellant.

The submission is obviously raising the constitutionality of the tax amnesty.

As I understand it, the submission is really, that, the tax amnesty is unconstitutional to the extent that it fails to cover all taxpayers. Looked at from another angle, the submission is that any law that does not treat all people equally does not provide them equal benefit to the law and is therefore unconstitutional.

The fallacy of the submission becomes self-evident when viewed in this wider context.

It is simply, that, all laws that do not treat all citizens equally are unconstitutional.

But, that is not what the Constitution contemplates or even says. I think it has always been recognised that no Constitution in the world is able to provide absolute equality to all its citizens.

The test of constitutionality of an enactment is not measured against absolute rights.

I intimated in CRS (Pvt) Ltd v Zimbabwe Revenue Authority HH728-17…, that, in our law, the test of constitutionality of an enactment is measured against the provisions of section 86(2) of our Constitution.

That provision allows the enactment of laws, such as the tax amnesty or any laws which restrict such a fundamental right as section 56(1), as long as it is a law of general application which is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality, and freedom.

These constitutional imperatives are, in turn, measured against all relevant factors, including the six that are enumerated in section 86(2)(a) to (f) of the Constitution.

The submission made, as to the possible infraction of section 56(1) of the Constitution, fails to address these factors.

Counsel for the appellant did not attempt to address these factors in his application for leave to introduce and rely on this ground.

He failed to show good cause for its introduction into argument.

He has failed to demonstrate the existence of a possible breach of the right to equality and equal protection and benefit of the law against the appellant and those taxpayers who have been excluded in the tax amnesty.

It seems to me, that, since the Constitution itself allows for the enactment of the tax amnesty legislation, it cannot be unconstitutional for that enactment to treat taxpayers differently.

Accordingly, I decline, yet again, to allow the introduction of the tax amnesty argument.

HH11-17 : ANDREW PASCOE vs MINISTRY OF LANDS AND RURAL RESETTLMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: CHITAPI J

In this application, the applicant seeks the following relief as set out in the provisional order:“TERMS OF FINAL ORDER SOUGHT1. That it be and is hereby declared that second respondent's dispossession of certain land and buildings in respect of applicant's offer letter for a certain piece of land described as ...

In this application, the applicant seeks the following relief as set out in the provisional order:

“TERMS OF FINAL ORDER SOUGHT

1. That it be and is hereby declared that second respondent's dispossession of certain land and buildings in respect of applicant's offer letter for a certain piece of land described as Subdivision 2 of Ivordale in the Goromonzi district of Mashonaland East Province measuring approximately 449.792ha in extent dated 16 July 2014 (hereinafter called “the property”) which physical dispossession took place on or about the 5th December 2016 and on subsequent days thereafter is and was unlawful on account that this was done without the consent of the applicant and without following due process and therefore in circumstances amounting to spoliation.

2. That it be and is hereby declared that the applicant, his agents, representatives, employees and invitees are entitled to peaceful and undisturbed possession of the property until such time as the respondents or one or other of them applies for and obtains an order of ejectment against applicant having final effect from a competent court.

3. That Respondents jointly and severally pay the costs of this application.

INTERIM RELIEF

Pending the determination of this matter, applicant is granted the following relief:

(a) That applicant's possession of the property referred to in his offer letter dated 16 July 2014 called Subdivision 2 of Ivordale in the Goromonzi District of Mashonaland East Province measuring approximately 449.792ha in extent (“the property”) be and is hereby restored in its entirety; and

(b) That second respondent and all other persons acting through or in common purpose with him remove all and any impediments on the property so as to permit free and unimpeded access by the applicant, his agents, employees, and invitees in and to the property and of all improvements on it; and

(c) That the second respondent and all persons acting through or in common purpose with him shall forthwith, upon the grant of this order, vacate the property, including any buildings and that all movable assets and property including livestock that may have been introduced by them onto the property also be removed. Failing vacation and removal, that the Sheriff or his Deputy be and is hereby authorised and empowered to attend to the ejectment of the second respondent and of all other persons claiming occupation and use of the property through him.

SERVICE OF THE PROVINCIAL ORDER

That leave be and is hereby granted to applicant's legal practitioners or the Sheriff or his Deputy to attend to the service of this order forthwith upon the Respondents in accordance with Rules of the High Court.”

On 16 December 2016, which was the set down date, the respondents sought a postponement of the hearing. The respondents had not had enough opportunity to peruse the application and to prepare and file their responses.

I postponed the hearing, and, following submissions by the applicant who was concerned that he could not access his planted crop, I asked the second respondent whether he had any problems with allowing the applicant to attend on his planted crop. The second respondent did not have a problem with this. I then granted an interim order pending the final disposal of the matter by myself.

I consequently granted an interim order in the following terms:

“IT IS ORDERED THAT:

1. The hearing of the application be postponed to 19 December 2016 at 2:30pm and ruling on wasted costs is reserved.

2. In the intervening period, the 2nd respondent, his agents or any other person so inclined is hereby ordered not to interfere with or impede in any manner the applicant or his workers access to and tending his crop of maize, groundnuts, and soya beans and already planned on the disputed land, subdivision 2 of Ivordale in Goromonzi as described in the applicant's founding affidavit.

3. The applicant shall not plant any new crops and the 2nd respondent shall not do or suffer to be done anything either by himself of through his agents on the disputed land as may affect the status quo which should remain so until the application is determined.

4. The respondents to file any opposing papers if they oppose the relief sought by no later than 12noon on 19 December 2016 and to serve the applicant's legal practitioner by no later than 1:00pm on the same date.”

The first and second respondents filed their responses.

The first respondent responded on the merits through an affidavit deposed to by the Permanent Secretary of the relevant Ministry. The first respondent's position was set out in the relevant paragraphs of her affidavit as follows:

“3. I have read the applicant's founding affidavit and wish to respond as follows;

4. All due processes leading to the downsize of the applicant's farm size were observed and adhered to and the applicant was left with enough land to conduct his dairy farming activities and other operations.

5. The Ministry policy permits the applicant to wind up any operations and harvest any crops that he might have planted without any interference from the incoming beneficiary.

6. In essence, the 2nd respondent is to allow the applicant to wind up operations with no interference from himself and/or any others that claim occupation through him.

7. In the premise, we abide with the court's ruling.”

The first respondent's position was therefore that the Minister did not oppose the interim relief sought. This much appears clearly from an analysis of paragraphs 5 and 6 of the first respondent's affidavit.

The Ministry does not allow an incoming beneficiary to interfere with operations of the incumbent operative who is given an opportunity to wind up his or her operations without interference.

The second respondent, on the other hand, was opposed to the application on three (3) grounds;

(i) Firstly, that the application was defective and therefore a nullity;

(ii) Secondly, that the matter was not urgent; and

(iii) Thirdly, on the merits.

I deal with the issues raised in turn....,.

On the merits, the applicant simply has to establish a prima facie case to obtain a provisional order.

A consideration of the papers filed in this matter, and the parties submissions, have left me satisfied that the applicant managed to establish a prima facie case.

The second respondent did not really deny the acts of spoliation complained of by the applicant. His attitude appeared to me to be that of one claiming a right to the disputed piece of land, and hence, by such right, an entitlement to act in whatever manner he chooses. For example, in paragraph 26 of his opposing affidavit, he admitted that he brought his property onto his allocated farm and did not need anyone's authority or permission to do so.

He misses the point.

The claim of right defence does not apply to spoliation proceedings.

In paragraph 27 of the same opposing affidavit, the second respondent averred that he “politely” asked the applicant to vacate the property. He does not, however, allege that the applicant, when politely asked to vacate, as averred, agreed to do so.

The applicant, without doubt, did not agree to vacate the farm nor did he allow the second respondent to chuck him out of the farm or disturb the applicant's farming activities.

The applicant petitioned the court for protection because he did not consent to the second respondent's acts of spoliation or takeover.

The second respondent should look to the law to enforce his rights and the more so taking into account, that, as a Chief, he must lead by example and obey and uphold the country's laws.

A close reading of the second respondent's affidavit shows that he has no defence to the allegations of spoliation. He describes the applicant as being defiant of his authority as Chief and being disrespectful.

The second respondent averred, in paragraph 31 of his opposing affidavit, as follows:

“…,. It is clear that what the applicant is trying to do is to prevent me from enjoying peaceful possession of my farm which was allocated to me by the first respondent.”

The second respondent averred, in his opposing affidavit, that, he cannot live with the applicant whom he referred to as his 'subject' in his area where such subject is hostile to him. He avers that the applicant must leave the area.

After hearing submissions from counsel for the second respondent, I formed the view, that, the second respondent felt challenged in his authority as Chief of the area by the applicant who challenged his takeover of the farm after allocation by the first respondent.

The law is blind. Every person is equal before it.

It would be a sad day for the gains which civilization and democracy have made if people in authority were to consider themselves as being a law unto themselves.

The facts of this matter are straightforward.

The first respondent has downsized the applicant's farm. A portion thereof has been allocated to the second respondent. The applicant has property and a crop on the farm. Until such time that the applicant vacates the portion allocated to the second respondent, either on his own violation or by eviction sanctioned by law, no one, including the second respondent, is allowed to forcibly occupy the farm - including the portion allocated to the second respondent.

Even the allocating authority, being the first respondent, has deposed to the fact that it does not support a policy of hostile takeover.

I therefore rule, that, the applicant has, on a balance of probabilities, made out a case for spoliation and is entitled to the relief which he seeks....,.

For the avoidance of doubt, I accordingly determine the application as follows:

1. The application succeeds and the interim relief, as set out in the provisional order, is hereby granted.

2. The interim order issued on 16 December 2016 is discharged and the interim relief as aforesaid shall substitute it.

HH02-22 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE & RURAL RESETTLEMENT and OTHERS
Ruled By: MAFUSIRE J

This is a constitutional application.

The applicants want section 4 and section 6(1)(b) of the Communal Land Act [Chapter 20:04] declared ultra vires the Constitution of Zimbabwe.

The draft order does not identify which particular sections of the Constitution the impugned provisions allegedly conflict with; but, according to the founding affidavit, the impugned provisions are an infringement of the applicants right to life; their right to human dignity; their right to property; their right to equal protection and benefit of the law; and their right to culture and language, allegedly as protected by section 48; section 51; section 72; section 63; section 56(1) and section 68 of the Constitution.

Section 4 of the Communal Land Act vests all communal land in the President, the third respondent herein. The provision reads:

“4 Vesting of Communal Land

Communal Land shall be vested in the President, who shall permit it to be occupied and used in accordance with this Act.”

Section 6 of the Communal Land Act empowers the President to make additions to or make subtractions from communal land. The impugned provision reads:

“6 Additions to and subtractions from Communal Land

(1) Subject to this Act…, the President may, by statutory instrument —

(a)…,.;

(b) After consultation with any rural district council established for the area concerned, declare that any land within Communal Land shall cease to form part of Communal land.”

The Communal Land Act defines 'Communal Land' as consisting of land, which, immediately before the 1st of February 1983 was Tribal Trust Land in terms of the Tribal Trust Land Act 1979 (No.6 of 1979), subject to any additions thereto or subtractions therefrom made in terms of section 6.

In terms of the Tribal Trust Land Act, tribal trust land consisted of land which, immediately before the appointed day (the day the Act would come into operation), was Tribal Trust Land in terms of the Land Tenure Act [Chapter 148], subject to any additions thereto and subtractions therefrom made in terms of that Act.

Tribal trust land, according to the Tribal Trust Land Act, vested in the President.

According to the uncontroverted facts presented by the applicants, they are all members of an ethnic community in Zimbabwe called the Hlengwe Shangaani.

This community occupies the south eastern Lowveld of Zimbabwe: mainly areas bordering, or falling within Chikombedzi, Chiredzi, Gonarezhou, Hippo Valley, Malilangwe, Mwenezi and Triangle, along rivers such as Save, Runde and Limpopo. This ethnic group is also found in parts of Mozambique and South Africa. It traces its history to more than 500 years ago in the parts that they are settled in.

It claims occupation of the lands in question well before the advent of colonialism in the 1890s. It even claims occupation before the seismic Mfecane migration that happened in Southern Africa in the 19th century when large swathes of ethnic groupings escaped with their leaders from Tshaka, the ruthless military ruler from Zululand. The migrants moved to occupy lands north of rivers Limpopo and Zambezi in parts of present day Zimbabwe, Mozambique, Malawi and Zambia.

What has triggered this constitutional onslaught by the applicants are a series of legal instruments passed by central Government, through the respondents (Minister of Lands, Agriculture, Water, Climate and Rural Resettlement, Minister of Local Government and Public Works, the President of the Republic of Zimbabwe and the Attorney General of Zimbabwe) in February and March 2021.

First, was Statutory Instrument 50 of 2021, S.I.50 of 2021, on 26 February 2021 (Communal Land [Setting Aside of Land] [Chiredzi] Notice, 2021).

In terms of it, an improperly described Minister of Local Government, Urban and Rural Development purportedly gave notice of the setting aside of 12,940 hectares in the administration district of Chiredzi for the purpose of 'lucerne production'. The notice went on to order, that, any person occupying or using the affected land otherwise than by virtue of a right held in terms of the Mines and Minerals Act [Chapter 21:05] should depart permanently with all his or her property from the land by the date of the publication of the notice, unless he or she acquired rights of use or occupation in terms of section 9(1) of the Communal Land Act.

Then, there was Statutory Instrument 51 of 2021, S.I.51 of 2021, on the same date, (Communal Land [Excision of Land] Notice, 2021).

In terms of it, the President, acting in terms of section 6(1)(b) of the Communal Land Act, excised the same land and declared that it had ceased to be part of Chiredzi Communal Land. The obnoxious order directing occupiers and users of the affected land to depart immediately with their property was left out.

Then, on 9 March 2021 was Statutory Instrument 63A of 2021,S.I.63A of 2021, (Communal Land [Setting Aside of Land] [Chiredzi] Notice, 2021: Correction of Errors). It corrected the mistake in SI50 of 2021. Where the latter had referred to the Minister of Local Government, Urban and Rural Development, and to its purpose as being lucerne production, the correcting instrument now referred to the Minister of Local Government and Public Works, the second respondent herein. The 'purpose' was changed from 'lucerne production' to 'establishment of an irrigation scheme'. Again, the order to users and occupiers to depart immediately was left out.

Finally, on 16 March 2021, was Statutory Instrument 72A of 2021,S.I.72A of 2021, (Communal Land [Setting Aside of Land] [Chiredzi] Notice, 2021).

In terms of it, the second respondent (Minister of Local Government and Public Works) gave notice, in terms of section 10 of the Communal Land Act, for the setting aside of the same piece of land for the purpose of establishing an irrigation scheme. It went on to repeal SI50 of 2021. Again, no mention was made of the order for users and occupiers to depart immediately.

The applicants grounds for the constitutional challenge are multiple....,.

Distilled, the applicants case, as I have understood it, and in my own words, is this:

(i) Given the history and manner of occupation of the lands in question by their ancestors, it is wrong to classify their territories as communal land within the meaning of the Communal Land Act. Their ancestors were not placed in those areas by colonialism. Their lands are not tribal trust land as is the case with the majority of the other ethnic groups in Zimbabwe. Their land was not artificially created and carved out by the Land Apportionment Act. They have owned it in their own right as indigenous people.

(ii) For the respondents to strip them of their land, or to displace them in the manner, and for the purposes intended, is to virtually pass the death sentence upon the entire community. The community occupies the land of their ancestors. It ekes out a living from pieces of lands ranging in sizes from about 12 hectares to about 16 hectares. The community comprises peasant farmers. They practise mixed farming. This consists of, among other things, crop and livestock production. Some members of the community are contract farmers for Delta Beverages for the production of sorghum. They rely on their land for virtually everything in life: food; medicines; culture; education; dignity; marriage, you name it.

(iii) The intended move by the respondents is an unlawful deprivation of their right to property as enshrined in section 71 and section 72 of the Constitution. In terms of the Constitution, no person may be compulsorily deprived of their property except in terms of a law of general application and for the public good, and on reasonable notice. Whilst the Land Acquisition Act [Chapter 20:10] may be such a law of general application, the Communal Land Act is not. However, the Communal Land Act is exempt from the Land Acquisition Act.

(iv) The Communal Land Act has a violent, obnoxious, and racist origin. It is a racist colonial relic. It is most shocking and inexplicable that a black government, born out of a bloody and protracted war of liberation against the white settler regime over the land question, has decided to retain this racist construct in its statute books. The vesting of communal land in persons other than the original owners stemmed from the racist philosophy that the aboriginal owners of that land, the indigenous black Africans, were barbarians with no grain of civilisation. Their backward state of development prevented them from treating land as a commercially tradable commodity that was capable of individual ownership.

(v) The racist colonial notion, that natives had no concept of private ownership of land, found expression in various racist pieces of agrarian legislation, writings, and judicial pronouncement. It all started with the Berlin Conference in 1884–1885. European powers carved out for themselves swathes of the African continent on the notion that blacks were barbaric, backward, and not capable of owning land. The British colonised what is present day Zimbabwe. They allowed the imperialist and adventurist Cecil John Rhodes and his British South Africa Company to cheat, rob, steal and plunder the African of his land. Blacks were driven and penned into unproductive 'native reserves'.

(vi) Regarding legislation and/or legal instruments, it all started with the Morris Carter Commission of 1925. It was a Commission set up to debate the issue whether blacks and whites could live side by side. From the premise that the black man, even under the veneers of civilisation, always reverted to his congenital barbarism, the African was pushed into unfertile tribal lands that were held in trust for him to minimise contact with the civilised white settlors. The fertile lands were reserved for the white settlors. Then, followed a series of racist legislation which condemned the indigenous black population to those wretched lands. Among others, there was the Land Apportionment Act of 1930. Then, the Land Husbandry Act of 1951; the Land Tenure Act, and then the Tribal Trust Land Act. All these were designed to segregate land into, among others, white and native areas. The whites took the lion's share of all the fertile lands. The blacks were condemned to eke out a living in overcrowded, dry, and extremely unfertile territories.

(vii) The decision of the Privy Council in England, in the case of In re Southern Rhodesia (1919) AC 211, gave judicial pronouncement to the racist construct that separate ownership of land was an alien concept to the native who was at the lower end of the scale of social organisation and civilisation.

(viii) With the attainment of independence in Zimbabwe in 1980, the new black Government merely renamed the Tribal Trust Land Act the Communal Land Act. But, it retained completely intact the racist provision depriving indigenous people occupying communal lands the right to have titled deeds. It is irrational and in defiance of logic that white settlors who forcibly took away black owned farms or built towns and townships in black areas could own that land privately, yet, indigenous owners settled in so-called reserves just across those farms or townships could not, and still cannot, obtain the right to private title. There is no logic in a situation where an African can acquire title to a small piece of land that he or she buys, or is allocated to him or her, in a township like Tshovani in Chiredzi, or Borrowdale in Harare, or Makokoba in Bulawayo, but with the same African, a stone throw away in Chilonga Communal Land, being unable to acquire similar title to the land of his or her birth.

(ix) Internationally, the various conventions and charters on human and people's rights have guaranteed the rights of access to, and the use of land and other natural resources held under communal ownership. Several other countries have grappled with agrarian reforms but in a rational and thoughtful manner. The applicants are entitled to the right to self-worth and human dignity in terms of the Constitution. The intended move by the respondents deprives the applicants, and their community, of the right to live on their lands. They will be moved without compensation. They have not been properly consulted. Government functionaries have merely appeared on the scene to inform them of the intended development. Lucerne production, or the purported irrigation scheme, are intended to benefit rich foreigners, not the local community.

(x) The agrarian reform undertaken by the Government from 2000 is an unfinished business. Government must issue title deeds or tradable certificates of occupation which can be hypothecated. There can be established a controlled land market for communal lands. Such a controlled market will ensure that foreign land barons do not buy out communal land. In countries, such as Ghana and Kenya, the land tenure systems are such that indigenous communities own their land which they can parcel out and sell subject to control by the community leaders.

The respondents contest none of the above narrative.

Through the Attorney-General, the fourth respondent herein, who has deposed to an affidavit on behalf of all of them, the substantive case for the respondents, again as I have understood it, and in my own words, is this:

(i) Section 4 and section 6(1)(b) of the Communal Land Act are not ultra vires the Constitution. There is nothing wrong in vesting communal land in the State President. Residents of communal lands have the right to use and occupy that land subject to the administrative oversight imposed by the Act. This is designed to ensure orderly development of communal lands. Residents of properly established townships in urban areas are governed by a different legal regime altogether. They cannot be compared to residents of communal lands. Communal lands are inhabited by ethnic communities with common customs and traditions. To allow private ownership of those territories poses grave danger to the customary practices, traditions, and livelihoods of those people. Vesting of such lands in the President is done to ensure orderly development. The President does not own the lands in his personal capacity, but by virtue of the powers vested in him as the State President.

(ii) No development of any significant proportion occurs in communal lands without prior and proper planning and consultations with the community leaders and the local authorities. This is what has happened in the case of Chilonga. The initial reference to 'lucerne production' was a mistake. What is intended to be done is to develop a vast irrigation scheme for the benefit of the local community.

No one will be displaced as the land that has been identified is largely un-inhabited. Those that may be affected will be relocated and compensated adequately in accordance with the provisions of the Act.

Such kind of development is not uncommon.

Sometimes, it is necessary to bring vast tracts of land that may be lying idle into production for the benefit of the affected communities and the country as a whole. It has happened with the Kanyemba area, the Bulawayo Kraal, and the Batoka in Hwange. The intended irrigation project in Chilonga will be an extension of the Tugwi-Mukosi project.

To the extent that it overlooks the obvious benefits of the intended project, namely, the generation of foreign currency, overall rural development, the provision of basic amenities like clinics, schools, and better housing, and the establishment of an economic hub in Chilonga, the application is myopic. It is frivolous and vexatious.

(iii) The Communal Land Act ensures, that, there is proper management of resources in the communal areas. Communal land encompasses a whole lot of other key natural resources such as wildlife and natural forests which require protection. Traditional leaders in the communal areas interface with rural district councils to ensure that there is proper use of the land. The Act is a self-contained model for rural development and transformation.

The application is a compelling dissertation on the history of the occupation of the territory that is now present day Zimbabwe; the savagery and ruthlessness that was associated with the forced dispossession of the local population of their resources, including land and cattle, and their virtual enslavement in the land of their births - all this by the incoming foreign white settlers.

There can be no question, that, the Communal Land Act, particularly the vesting of title of such lands in any person other than the occupiers and users of that land, has its origins in the pathological hatred of the aboriginal races by the invading forces and the retrograde, self-serving conceptions and philosophies concerning the indigenous African.

He was viewed as a congenital barbarian, a sub-human being and an uncivilised savage, who, among other despicable traits, did not recognise land as being capable of private ownership, and, therefore, a commercially tradable commodity.

The history presented by the applicants in this application rings true for virtually every piece of the African continent that was under colonialism. It is virtually impossible to narrate it with dispassionate detachment without getting emotionally entangled.

However, when it comes to the nuts and bolts of the case, and the remedy the applicants seek, it becomes a different ball game altogether.

There are simply some things or problems that the law and the courts alone may not accomplish or resolve.

There are simply some issues that a court alone may be ill-equipped to provide a solution to. There could be some questions that the law and the courts are perfectly poised and empowered to resolve. Then, there are others that require a political solution. Sometimes politics has to speak first, and, only then, may the law take over. Where politics has not yet spoken, or where it has spoken something else, there may well be a lacuna in the law. The courts may be ill-equipped to fill up the gap.

Where a matter is not capable of judicial resolution, the court may decline jurisdiction.

I must explain what I mean.

The Constitution, in Chapter 8, vests judicial function in the courts. Courts exist to exercise judicial power of the State. But, in a constitutional democracy, the doctrine of the separation of powers confines the courts to their lane of operation. This was underscored in Doctors for Life International v Speaker of the National Assembly & Ors 2006 (6) SA 416 (CC)…, as follows:

“Courts must be conscious of the vital limits on judicial authority and the Constitution's design to leave certain matters to other branches of government. They too must observe the constitutional limits of their authority. This means, that, the judiciary should not interfere in the processes of other branches of government unless to do so is mandated by the Constitution.”

This principle was also clearly articulated in International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC)…,:

“Where the Constitution or valid legislation has entrusted specific powers and functions to a particular branch of government, courts may not usurp that power or function by making a decision of their preference. That would frustrate the balance of power implied in the principle of separation of powers. The primary responsibility of a court is not to make decisions reserved for or within the domain of other branches of government, but, rather, to ensure that the concerned branches of government exercise their authority within the bounds of the Constitution. This would especially be so where the decision in issue is policy-laden as well as polycentric.”

Courts do recognise the political question doctrine.

There are certain decisions that are better left to Parliament or the Executive to resolve.

In Nyambirai v National Social Security Authority & Anor 1995 (2) ZLR 1 (S) the Supreme Court…, put it as follows:

“I do not doubt, that, because of their superior knowledge and experience of society and its needs, and a familiarity with local conditions, national authorities are, in principle, better placed than the Judiciary to appreciate what is to the public benefit. In implementing social and economic policies, a government's assessment as to whether a particular service or programme it intends to establish will promote the interest of the public, is to be respected by the courts. They will not intrude but will allow a wide margin of appreciation unless convinced, that, the assessment is manifestly without reasonable foundation.”

In the case of Commercial Farmers Union v Minister of Lands & Ors 2000 (2) ZLR 469 (S) it was recognised, that, the land issue lies in the political domain to resolve. It was categorically accepted as fundamentally true, that, the land issue was a political question. It was said, that, the political method of resolving that question was by enacting laws. To this extent, it was recognised, that, the Government had just done that. It had enacted and amended the Land Acquisition Act.

The only problem was that the Government was not obeying its own laws.

When a Government does not obey its own laws there can be no question of the courts keeping mute in their lane. They will speak out. They will call the Government to account. It is their constitutional mandate.

In the present case, I am not convinced that the impugned sections in the Communal Land Act are ultra vires the Constitution.

The Act may have an obnoxious and racist parentage: but, at independence, in 1980, and beyond, up to the present day, the Government, in its infinite wisdom, decided to retain the Tribal Trust Land Act intact, albeit under a new title. It decided to leave the concept of vesting of communal lands in the State President intact.

That was a political decision.

The respondents have argued why that was so. The applicants dismiss that argument. But, I would think that without some sort of commission of enquiry on the whole agrarian reform, especially as it applies to communal lands, this court may not be sufficiently qualified to provide a wholesome solution to the question of private ownership of communal lands.

It is not an unreasonable fear, that, the granting of title carte blanche to users and occupiers of communal lands may result in undesirable consequences.

For example, foreign land barons may end up owning vast tracts of communal land. This may disrupt the orderly customary way of life in those territories.

If there are safeguards that may be put in place, like what the applicants say happened in Kenya and Uganda. I just do not have sufficient information and knowledge of what they are.

A holistic approach to the question is required instead of providing some random remedy under some constitutional fiat.

The history of the occupation of the territories the applicants and their community hail from may be unique. The respondents have not contradicted it. But, in my view, this does not distinguish such territories from being communal lands within the meaning of the Communal Land Act.

They remain communal land. They are classified as communal land. It is the same with territories in other areas.

The State President does not own them in his own personal capacity.

There are parameters within that Act governing such vesting of ownership. There are measures within the Act governing the excision of any communal land, the addition to or subtraction from it.

Where there are developments intended to be carried out in communal lands, such as have been touted in this application, there are administrative procedures that have to be followed. These may, or may not be adequate.

The applicants insist that none of such procedures has been followed.

But this is a question of fact. It does not determine the constitutionality or otherwise of the impugned provisions.

I see no discrimination as against the applicants and their community as communal land dwellers.

The Executive and the Legislature are better placed than the courts to consider, on the basis of the material, information, the expertise, the resources, and so on, available to them whether, in spite of the regrettable origins of the Communal Land Act, it is time that private ownership of communal territories is recognised so that individual title deeds can now be granted to the occupiers of such territories. It is not for the courts to decide or provide a solution under the guise of constitutionalism.

It is a political question.

The application cannot succeed.

However, I disagree with the respondent's contention that it was frivolous and vexatious. It was not. It was public interest litigation.

Such kinds of challenges may actually dog the courts in the future.

Therefore, in dismissing the application, it is only fair that each party bears their own costs. The following order is hereby made:

The application is hereby dismissed but with no order as to costs.

Appealed
CC01-20 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, MAKONI JCC and BERE JCC

Section 56(1) of the Constitution entrenches the right of every person to equality and to equal protection and benefit of the law.

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

MAKARAU JCC:This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by ...

MAKARAU JCC:

This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by the President as unconstitutional. This it allegedly did in the first of its two parts.

Background

We summarise the facts giving rise to this application from the two applications that were filed in the High Court under case numbers HC2128/21 and HC2166/21, respectively. The facts are not complex.

The facts of this application coalesce, and relevantly so, around 15 May 2021 when the Chief Justice, Judge Malaba, reached the age of seventy. A few days before that date, on 7 May 2021 to be precise, the Constitution of Zimbabwe Amendment (No.2) Act (No.2 of 2021) came into force.

Among other provisions, it amended section 186 of the Constitution to provide for the tenure of judges in the following terms:

“(1) The Chief Justice and the Deputy Chief Justice hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire unless before they attain that age they elect to continue in office for an additional five years;

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(2) Judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen years; but

(a) They must retire earlier if they reach the age of seventy unless, before they attain that age, they elect to continue in office for an additional five years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(b) After the completion of their term, they may be appointed as judges of the Supreme Court or the High Court, at their option, if they are eligible for such appointment.

(3) Judges of the Supreme Court hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire, unless, before they attain that age, they elect to continue in office for an additional five years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(4) Notwithstanding subsection (7) of section 328, the provisions of subsections (1), (2) and (3) of this section shall apply to the continuation in office of the Chief Justice, the Deputy Chief Justice, Judges of the Constitutional Court and Judges of the Supreme Court.”

Acting in accordance with the provisions of section 186 of the Constitution, as amended, the Chief Justice exercised the option to extend his tenure of office beyond the age of seventy for an additional five years.

By letter dated 11 May 2021, the seventh respondent, the President, accepted a medical report as to the mental and physical fitness of the Chief justice to continue in office.

The third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Mutanda) respondents formed the firm view, that, the seventh respondent (the President), by accepting the medical report, that the Chief Justice was mentally and physically fit to so continue in office, had subverted the correct constitutional position.

They filed the two applications in the High Court that we have detailed above, challenging the continuation in office of the Chief Justice for an additional five years beyond 15 May 2021.

In his application, the third respondent (Musa Kika), in addition to the Chief Justice, cited as respondents all the judges of the Supreme Court and some judges of the High Court.

At the time of the filing of the application, the five judges of this Court, other than the Chief Justice and the Deputy Chief Justice, were Supreme Court judges, acting as Supreme Court judges and were cited as such. Substantive appointments to this Court were made subsequent to the filing of the applications a quo but before the hearing of this application.

Whilst materially and correctly so, the third respondent (Musa Kika) averred in his application, that, the Chief Justice had opted to exercise the option introduced by the amendment, no such averment was made in respect of any or all of the other judges who were cited as respondents under case number HC2128/21.

We revert to this fact in detail later.

The primary relief sought in the applications a quo was a declaration that the amendment to the Constitution, in section 186, did not apply to the Chief Justice and the judges cited as respondents. Specifically, it was claimed, that, the amendment did not have any force and effect on the tenure of the Chief Justice and the cited judges as such an interpretation would fall foul of the provisions of section 328(7) of the Constitution.

Section 328(7) of the Constitution provides that:

“(7) Notwithstanding any other provision of this section, an amendment to a term–limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”

The two applications, both brought urgently, were opposed on truncated dies induciae in accordance with the terms of a case management meeting order to which all the parties agreed.

At the end of the hearing of the applications, as indicated above, the court a quo issued a singular order in the following terms:

“IT IS DECLARED THAT:

1. The second respondent in HC2128/21 who is also the second respondent in HC2166/21 ceased to hold the office of the Chief Justice of Zimbabwe and judge by operation of law on 15 May 2021 at 4:00 hours.

2. The extension of the length of time in the office of the judge beyond the age of seventy provided for in section 186 of the Constitution does not apply to the second to fourteenth and eighteenth respondents.

3. There shall be no order as to costs.”

The respondents a quo, including the judges of this Court, were aggrieved by the order.

Under separate and different covers, they filed notices of appeal in the Supreme Court challenging the correctness of the decision.

It is not necessary that we set out the grounds of appeal of each appellant in full. As and when it is it necessary to do so, we shall advert to the notices of appeal.

The applicant, strongly believing, that, the effect of the first part of the order was to declare constitutionally invalid the letter of 11 May which constituted the legal authority for the Chief Justice to continue in office, filed this application in terms of section 175(3) of the Constitution.

As indicated above, he sought the setting aside of the entire order.

This he did notwithstanding, that, on its mere reading, the High Court order did not in any way refer to the conduct of the seventh respondent (the President) as constitutionally invalid.

We observe, at this stage, that, the interpretation of the High Court order by the applicant in this regard was conceded as correct by the fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondent's counsel during the hearing of the application.

We shall advert to this concession in detail in due course.

The Application in terms of section 175(3) of the Constitution

It is common cause that the applicant was not a party to either of the two applications that were determined by the High Court. He brought this application in the first instance. In the application, he alleged that he is an adult Zimbabwean who is asserting his right to access this Court directly to defend and protect the Constitution.

Arguing that the state of affairs in the country following the issuance of the High Court order was undesirable as there should never, in any jurisdiction, be doubt as to who the Chief Justice is, the applicant made two basic contentions:

(i) Firstly, he contended, that, the juristic act by the seventh respondent (the President) of accepting a medical report as to the mental and physical fitness of the Chief Justice to remain in office for an additional five years, after attaining age seventy, was valid and the High Court orders purporting to hold such as constitutionally invalid had to be set aside.

(ii) Secondly, he contended, that, section 328(7) of the Constitution, relied upon by the third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondents as precluding the amendment of the Constitution from applying to the Chief Justice and other sitting judges was not applicable as section 186(4) of the Constitution was the applicable section.

The third, fourth, and fifth respondents opposed the application.

The first (Minister of Justice, Legal and Parliamentary Affairs), second (Judicial Service Commission), sixth (Attorney General) and seventh (the President) respondents were content to keep a watching brief during the hearing of the application.

The third respondent (Musa Kika) opposed the application on the basis of a sole preliminary point. It was his position that this court should refrain from exercising jurisdiction in the matter.

Put differently, it was his position, edified during the proceedings by an oral application, that, this Court should recuse itself. In his view, since the second part of the High Court order declared that the judges of this and the Supreme Court could not extend their respective terms of office beyond the age of seventy, the order under scrutiny in the confirmation proceedings affects the judges of this Court directly.

In this regard, he was keen to highlight and place it on record, that, the judges of this Court had not only participated in the proceedings before the High Court but had since filed a notice of appeal against the High Court order.

It was therefore the mainstay of his exception and position, that, the judges of this Court were completely non-suited to hear this application on account of their positions as active litigants who were already seeking the vacation of the High Court order by way of appeal.

In his further view, the determination of the application by this Court, as constituted, would, in the circumstance of the matter, implicate a breach of the common law principle nemo judex in sua causa.

In opposing the application, the fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondents raised a number of issues:

(i) Firstly, they challenged the competence of this Court to determine the application. They also sought the recusal of the entire bench of this Court on the same ground that the third respondent (Musa Kika) had relied upon.

(ii) Secondly, and before a competently constituted Court, the fourth respondent took issue with the locus standi of the applicant to bring the application in the manner that he did. In essence, it was the fourth respondent's position that the applicant, not having obtained any rights under the High Court order, could not purport to challenge the order.

(iii) Thirdly, and regarding the merits of the matter, the fourth respondent challenged the procedural steps taken and leading to the acceptance by the seventh respondent (the President) of a medical report as to the mental and physical fitness of the Chief Justice to continue in office for an additional five years after his seventieth birthday.

Thus, broadly speaking, the application raised for determination three distinct issues. The second issue would only become relevant and fall for determination if the respondents were not successful on the first issue and the third issue would only require determination if the respondents failed on the second issue.

(i) The first issue was whether this Court should recuse itself;

(ii) If the Court did not recuse itself, the second issue would be whether the applicant had locus standi to bring the application under section 175(3) of the Constitution; and

(iii) Finally, if he did have the requisite standing, whether the application had merit....,.

PATEL JCC: It is pertinent, at this juncture, before addressing the substance of the matter, to make an observation concerning the conduct of the third respondent (Musa Kika).

Even though he was primarily instrumental in initiating the proceedings a quo, he deliberately chose not to address any issue other than that of recusal; either in his opposing affidavit or in his heads of argument.

Equally curiously, at the end of the proceedings on the question of recusal, he and his counsel elected not to appear in any further proceedings before the Court. In the event, the matter proceeded in the absence of the third respondent and without the benefit of his submissions on the substantive merits of the matter.

The relief sought by the applicant in this matter is essentially threefold:

(i) The first is a declaratur to the effect that paragraphs 1 and 2 of the operative part of the High Court judgment No.264-21, handed down on 15 May 2021, are orders of constitutional invalidity within the contemplation of section 175(1) of the Constitution.

(ii) The second is a further declarator to the effect, that, the aforesaid High Court orders have no force unless confirmed by this Court.

(iii) Lastly, the applicant seeks a substantive order declining to confirm and setting aside the impugned High Court orders.

My learned sister, MAKARAU JCC, in addressing the application for recusal, has earlier outlined the broad issues raised by this application. Having regard to the averments contained in the affidavits filed by the parties and the arguments presented before us, the specific issues that now arise for determination in this matter are as follows:

(i) Whether the applicant has the requisite locus standi to institute this application.

(ii) The effect of the failure by the applicant in the proceedings a quo (i.e. the third respondent herein) to seek and obtain leave to sue all the judges that were cited as respondents in that matter.

(iii) Whether the orders of the court a quo are orders of constitutional invalidity requiring the confirmation of this Court.

(iv) The correctness of the judgment of the court a quo -

(a) In its interpretation of sections 186 and 328 of the Constitution; and

(b) As regards the alleged violation of the right to equal protection of the law and the right of access to the courts.

(v) Whether this Court should decline to confirm and accordingly set aside the orders granted by the court a quo.

I propose to address and determine the foregoing issues ad seriatim....,.

Orders of Constitutional Invalidity Requiring Confirmation

As already stated, the court a quo issued two declaratory orders:

(i) The first declared, that, the second respondent (the Chief Justice) ceased to hold that office by operation of law.

(ii) The second declared, that, the extension of office beyond the age of 70 years, provided for in section 186 of the Constitution, does not apply to the second to the fourteenth and the eighteenth respondents (the senior judges).

The question that arises for determination is whether or not these declarators amount to orders concerning constitutional invalidity within the meaning of section 175(1) of the Constitution requiring the confirmation of this Court in terms of section 175(3) of the Constitution.

Counsel for the applicant submits, that, this question must be answered in the affirmative and that the orders made a quo have no effect unless confirmed by this Court.

The nature of a judgment is not determined by its characterisation but by its dictates and effects. One must look at its substance and true nature and not at its form.

The court a quo stated, that, the purported extension of office of the incumbent Chief Justice remains a nullity and was void ab initio.

In effect, the court found, that, the election to continue in office made by the Chief Justice, as approved in writing by the President, was invalid. The court also found, albeit indirectly, that section 186(4) of the Constitution was invalid and ineffective.

The effect of both orders was to render invalid the conduct of the President as well as that of Parliament.

There was clearly a declaration of invalidity within the meaning of section 175(1) of the Constitution and it requires confirmation under section 175(3) of the Constitution.

In response, counsel for the fourth and fifth respondents concedes, that, the orders of the court a quo declared the conduct of the President and Parliament to be invalid without directly citing them.

Mr Zhuwarara notes, that, this concession on behalf of the fourth and fifth respondents is correct.

One must look to the reasons and orders of the court a quo to determine the effect of their substance.

These orders invalidated the decision of the President to allow the extension of office of the incumbent Chief Justice as well as the conduct of Parliament in enacting section 186 of the Constitution.

They are therefore subject to confirmation by this Court.

There can be no doubt, that, in terms of section 175(1) of the Constitution, the High Court, as a subordinate court, is perfectly competent to make an order of constitutional invalidity. However, any such order will have no force or effect unless it is confirmed by this Court.

This is because section 167(3) and section 175(1) of the Constitution explicitly declare, that, an order of constitutional invalidity made by another court has no force before and unless that order is confirmed by the Constitutional Court.

Section 167(3) of the Constitution also makes it clear, that, this Court makes the final decision as to whether an Act of Parliament or conduct of the President or Parliament is constitutional.

Sections 175(1) and 167(3) of the Constitution serve distinct yet harmonious purposes, emphasising the express oversight of this Court over orders of constitutional invalidity made by subordinate courts: see Makamure v Minister of Public Service, Labour and Social Welfare & Anor CC01-20…,.

Thus, section 175(3) of the Constitution vests in this Court the exclusive competence to preside over confirmation proceedings, in which proceedings the Court makes the final determination as to whether any law or conduct of the President or Parliament is consistent or inconsistent with the Constitution.

Turning to the two orders made by the court a quo, it will be seen, that, they contain no direct reference to the concept of constitutional invalidity.

Nevertheless, it is a settled principle of law, that, the true nature of a court order is a matter of substance and not form.

Thus, to determine whether an order is an order of constitutional invalidity, one must look to the substance of the order: see President of the Republic of South Africa v SARFU 1999 (2) SA 14 (CC); Eke v Parsons 2015 (2) BCLR 1319 (CC).

A closer reading of the orders in casu, and their substance, shows the following:

The first order declares, that, the incumbent Chief Justice ceased to hold that office by operation of law.

The inescapable effect of that order was to declare as invalid the conduct of the President, as per his letter of 11 May 2021, which conduct validated the extension of tenure of the Chief Justice.

As a result, the court a quo, in substance, held that the conduct of the President was invalid as being contrary to the provisions of the Constitution.

Turning to the second order, by holding that section 186 of the Constitution did not apply to all the judges who were cited as respondents, the court a quo effectively declared that section 186(4) of the Constitution was invalid.

The provisions of section 186 of the Constitution give the judges in question the option to elect to retire upon reaching the age of 70 years or to continue in office until they reach the age of 75 years.

The court a quo arrived at the decision, that, the election to extend tenure did not apply to sitting judges upon its finding that Parliament had amended a term limit provision and thereby violated the provisions of section 328(7) of the Constitution.

There can be no doubt, that, the judgment of the court a quo made, in effect, a finding of constitutional invalidity of the conduct of Parliament in enacting section 186 of the Constitution in violation of section 328(7) of the Constitution.

By doing so, it also rendered otiose the provisions and purpose of section 186(4) of the Constitution.

The substance and effect of the orders in casu are unquestionably tantamount to orders of constitutional invalidity within the contemplation of section 175(1) of the Constitution.

As was spelt out in S v Chokuramba CC10-19, only the Constitutional Court has the final say concerning the constitutionality or otherwise of any law or conduct of the President or Parliament.

To the extent that the court a quo effectively invalidated section 186(4) of the Constitution, as well as the conduct of the President and Parliament, the final authority to confirm or vary the orders of that court rests with this Court.

Moreover, the involvement of the Constitutional Court in the process of determining the constitutionality of any law or conduct of the President or Parliament, through confirmation proceedings, is mandatory.

There can therefore be no doubt, that, this Court is properly seized with the matter insofar as it pertains to questions of constitutional invalidity. Inasmuch as the matter is within its exclusive jurisdiction, the Constitutional Court cannot renounce or abdicate its constitutional duty.

To sum up, the impugned orders of the court a quo constitute orders concerning constitutional invalidity as contemplated in section 175(1) of the Constitution and they are therefore subject to confirmation or variation in accordance with section 175(3) of the Constitution.

Correctness of Judgment of Court a Quo

The determination of this matter on its merits hinges upon the correctness of the judgment a quo:

(i) Firstly, in its interpretation of section 186 and section 328 of the Constitution; and

(ii) Secondly, in its findings on the alleged violation of the right to equal protection of the law and the right of access to the courts.

As regards the first aspect, the court a quo found, that, sections 186 and 328 of the Constitution were not in conflict, but, must be read together and with the Constitution as a whole.

The court concluded, that, section 186 of the Constitution was a term limit provision and that it had the effect of extending the length of time that a person may hold office as a judge of the Constitutional Court and the Supreme Court. The court reasoned, that, tenure has to do with term of office and term of office has to do with time. Both fixed term and age-based term have to do with time, and, therefore, the inescapable conclusion is that varying retirement age amounts to varying a term limit.

With reference to section 186(4) of the Constitution, the court found that its explicit reference to section 328(7) of the Constitution would be rendered superfluous or nugatory if it is found that section 186 is not a term limit provision.

The court also relied on the decision in Justice Alliance of South Africa v President of the Republic of South Africa & Others 2011 (5) SA 388 (CC)…, as confirming that age is an indifferent criterion which can and does define and can be used to extend a term of office, as was the case with section 186 of the Constitution.

In reading section 186(4) together with section 328(7) of the Constitution, the court concluded, that, the former does not apply to judges of the Constitutional Court and Supreme Court who held office before the amendment of section 186 of the Constitution. Section 186(4) must therefore be understood as being applicable to persons who are appointed to those judicial offices subsequent to the amendment.

As regards the right to equal protection of the law, the court held, that, the continued occupation of office by the incumbent Chief Justice, after he had turned 70 years old, violated the applicants right as enshrined in section 56(1) of the Constitution. The applicants were entitled to the protection and benefit of the law in the sense of having public office occupied in accordance with and not in violation of the provisions of the Constitution.

As for the right of access to the courts, it was observed, that, the rule of law affords the right to litigate before an impartial and independent court. If judicial officers have their age limit extended contrary to the express provisions of the Constitution, which prevent incumbents from having their terms of office extended for them while they are in office, questions will reasonably abound as to the extent to which the courts can be independent.

Additionally, the election of a judge to continue in office is subject to acceptance by the President and this has the effect of subjecting the term of office, or its extension, to the control of the Executive.

Consequently, the court held, that, if any extension of office is afforded to the judges in question, then, there would be a violation of the applicants right as protected by section 69(3) of the Constitution.

The current section 186 of the Constitution, which replaced its precursor in its entirety, was introduced by section 13 of the Constitution of Zimbabwe Amendment (No.2) Act (No.2 of 2021) promulgated in May 2021.

Subsections (1), (2) and (3) provide that the Chief Justice, Deputy Chief Justice, and judges of the Constitutional Court and Supreme Court hold office until they reach the age of 70 years when they must retire, unless, before they attain that age, they elect to continue in office for an additional 5 years.

Subsection (2), which deals with judges of the Constitutional Court, is somewhat different in that those judges are appointed for a non-renewable term of not more than 15 years, but, they must retire earlier if they reach the age of 70 years, unless they elect to continue in office for a further 5 years.

Under all three subsections, the election to continue in office is subject to the acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to the mental and physical fitness of the judges concerned to continue in office.

Subsection (4), the seemingly controversial provision, stipulates that subsections (1), (2) and (3) shall apply to the continuation in office of the judges referred to in those subsections, notwithstanding the provisions of subsection (7) of section 328 of the Constitution.

Subsection (5) provides, that, judges of the High Court, and all other judges, hold office until they reach the age of 70 years, when they must retire.

Subsection (6) enables the appointment of judges for a fixed term, but, stipulates that such judges cease to hold office upon reaching the age of retirement, even if their term of appointment has not expired.

Subsection (7) provides for a judge to continue in office, even though he or she has reached the age of retirement or reached the end of his or her term of office, for the purpose of dealing with any proceedings commenced while he or she was a judge.

Subsection (8) enables a judge to resign from office at any time.

Lastly, subsection (9) declares, that, the office of a judge must not be abolished during his or her tenure of office.

Section 328 of the Constitution governs the manner in and conditions under which the Constitution may be amended.

By virtue of section 328(6) of the Constitution, where a Constitutional Bill seeks to amend any provision of Chapter 4 or Chapter 16, it must be submitted to a national referendum for approval.

Section 328(7) of the Constitution stipulates that “an amendment to a term-limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”

The phrase 'term limit provision' is defined in section 328(1) of the Constitution to mean “a provision of this Constitution which limits the length of time that a person may hold or occupy a public office.”

Section 328(8) of the Constitution states, that, subsections (6) and (7) must not be amended in the same Bill and that amendments to both those subsections may not be subjected to the same referendum.

Lastly, section 328(9) of the Constitution provides, that, section 328 may be amended only by following the procedures set out in subsections (3), (4), (5) and (6), as if section 328 were contained in Chapter 4.

The critical question that arises for determination in casu is whether the court a quo correctly analysed the provisions of section 186 (as amended) and section 328 of the Constitution in arriving at the conclusion that there is no meaningful legal difference between age limits and term limits.

Counsel for the applicant submits, that, subsections (1), (2) and (3) of section 186 of the Constitution extend the age limit of retirement to 75 years but do not extend any term limit as envisaged in section 328(7) of the Constitution. Thus, the term of 15 years prescribed in section 186(2) is a term limit but is subject to the age limit of 70 or 75 years. Parliament did not extend any term limit but only amended the age limit. A term of office is different from the conditions to which it is subjected.

Counsel for the fourth and fifth respondents accepts, that, there is a difference between an age limit and a term limit.

However, he relies upon Justice Alliance of South Africa v President of the Republic of South Africa & Others 2011 (5) SA 388 (CC) to support the judgment of the court a quo.

As regards section 186(4) of the Constitution, he submits, that, it attempts to amend section 328(7) and refers to section 332 of the Constitution which defines the word “amend” very broadly to include 'vary, alter, modify, add to, delete or adapt'. Section 186(4) modifies and amends section 328(7) and is therefore subject to approval by a referendum in accordance with section 328(6) of the Constitution.

Counsel for the applicant counters, that, section 186(4) creates a non obstante clause, and, if there is any inconsistency between section 186(4) and section 328(7), then, it is section 186(4) that prevails.

In any event, so he submits, section 186(4) does not amend section 328(7) but operates to supersede its provisions in relation to the application and effect of section 186.

In arriving at its decision, the court a quo appears to have relied fairly heavily on the judgment in Justice Alliance of South Africa v President of the Republic of South Africa & Others 2011 (5) SA 388 (CC). In particular, it cited the following passages, at paras 75 and 91 respectively:

“…,. It must be borne in mind, that, the extension a term of office, particularly one conferred by the Executive or by Parliament, may be seen as a benefit. The judge or judges upon whom the benefit is conferred may be seen as favoured by it. While it is true…, that the possibility of far-fetched perceptions should not dominate the interpretive process, it is not unreasonable for the public to assume, that, extension may operate as a favour that may influence those judges seeking it.

The power of extension in section 176(1) must therefore, on general principle, be construed so far as possible to minimise the risk that its conferral could be seen as impairing the precious-won institutional attribute of impartiality and the public confidence that goes with it.” [para 75]…,.

“It follows, that, in exercising the power to extend the term of office of a Constitutional Court judge, Parliament may not single out the Chief Justice.

The provision does not allow any member of the category of Constitutional Court judge to be singled out, whether on the basis of individual characteristic, idiosyncratic feature or the incumbency of office.

Age is an indifferent criterion that may be applied in extending the term of office of a Constitutional Court judge.

Age is an attribute that everyone attains.

Previous judicial service is another criterion that may be indifferently applied to all the judges of this Court.

The Act provides, that, a Constitutional Court judge whose 12-year term of office expires before he or she has completed 15 years active service as a judge must, subject to attaining the age of 75 years, serve for 15 years in this Court.” [para 91]…,.

In order to assess the relevance and import of these passages, it is necessary to contextualise the decision of the Constitutional Court of South Africa.

The application before the court arose from a decision by the President of that country to extend the term of office of the Chief Justice for 5 years. The three applicants in the matter challenged the constitutionality of the law that authorised the process by which the term of office of the Chief Justice was extended, and, if the law was found to be valid, they put in issue the constitutional validity of the conduct of the President in the process of extending that term of office. The governing constitutional provision, section 176(1), stipulated as follows:

“A Constitutional Court judge holds office for a non-renewable term of 12 years or until he or she attains the age of 70, whichever occurs first, except where an Act of Parliament extends the term of office of a Constitutional Court judge.”…,.

Section 4 of the relevant Act, the Judges Remuneration and Conditions of Employment Act 2001, provided that a Constitutional Court judge, whose 12 year term of office expired or who reached the age of 70 years before completing 15 years active service, must continue in office until the completion of 15 years active service or until that judge attained the age of 75 years, whichever occurred the sooner.

Section 8(a) of the Act permitted the further extension of the term of office of the Chief Justice exclusively.

It allowed a Chief Justice, whose 12 year term of office was to expire, and who would have completed 15 years active service, to remain as the Chief Justice at the request of and for a period determined by the President.

The court noted, at para 92, that, section 4 of the Act entailed, that, to receive a full judicial pension on retirement, a judge must have completed at least 15 years active service, subject to attaining the age of 75 and to a minimum 12 year term in the Constitutional Court.

However, it was unanimously found, that, section 8(a) of the Act was inconsistent with section 176(1) of the Constitution and was therefore invalid. The court opined as follows, at paragraphs 93 to 94:

“Unlike the criteria of age and service, the offices of Chief Justice and Deputy Chief Justice, are, by definition, singular and person-specific. They can, at any one time, be filled, respectively, by only one incumbent. Section 176(1) does not permit the holders of these offices to be singled out individually for extension by virtue of their incumbency of office. For this purpose, the holders of these offices are merely judges of this Court. Their terms, if they are to be extended, must be extended uniformly with those of the other members of the Court.” [para 93]…,.

“To create a special category for the extension of the term of office of the Chief Justice or Deputy Chief Justice would be, in each case, to single out one judge. It would be to single out a member of this Court on the basis of incumbency of an office that is irrelevant to the delineation of the members of this Court in section 176(1). This, section 176(1) does not license.” [para 94]…,.

In the event, the court declared section 8(a) of the Act, and the decision of the President, to be inconsistent with the Constitution and therefore invalid. The court further held the consequent extension of the term of office of the Chief Justice to be of no force and effect.

As is evident from the above-cited passages, which I have deliberately quoted in extenso, the principal issue for determination in Justice Alliance of South Africa v President of the Republic of South Africa & Others 2011 (5) SA 388 (CC) was markedly different from the issue that this Court is called upon to adjudicate.

In that case, the question to be decided was whether the statutory provision under scrutiny could validly single out the Chief Justice for extension of office at the behest of the President.

The court found, that, the Constitution did not allow Parliament to single out the Chief Justice, or the Deputy Chief Justice, and that their terms of office, if they were to be extended, had to be extended uniformly with those of the other judges of the court.

What was found to be objectionable was the unconstitutional differentiation for the purpose of extension of office.

While age and length of service were indifferent criteria that could validly be applied in extending the term of office of judges, incumbency of a particular office was not a constitutionally permissible attribute for that purpose.

My reading of Justice Alliance of South Africa v President of the Republic of South Africa & Others 2011 (5) SA 388 (CC) evinces nothing to support the conclusion arrived at by the court a quo, to wit, that there is no critical difference between age limits and term limits in evaluating the proper inter-relationship between section 186 and section 328 of the Constitution.

The court appears to have selectively decontextualized and mis-applied the passages that it cited from Justice Alliance of South Africa v President of the Republic of South Africa & Others 2011 (5) SA 388 (CC) in order to bolster its own conclusion.

In interpreting the Constitution, as is the case with any other legislative enactment, it is necessary to have regard to the words used and to deduce from them what the particular word, phrase, or section to be deciphered means.

In doing so, one must take into account the overall context in which it appears.

Moreover, all relevant provisions that bear on the subject for interpretation must be considered together and as a whole, so as to give effect to the objective of the Constitution, having regard to the nature and scope of the rights, interests, and duties that form the subject matter of the provisions to be construed: see Hewlett v Minister of Finance & Anor 1981 ZLR 571 (S); Tsvangirai v Mugabe & Ors CC20-17.

Turning to section 328(7) of the Constitution, the language used in that subsection is relatively unambiguous as to the objective that it seeks to achieve.

It precludes the application of any amendment to a term-limit provision “the effect of which is to extend the length of time that a person may hold or occupy any public office” in relation to any person who held or occupied that office at any time before the amendment came into effect.

A 'term limit provision' as defined in section 328(1) of the Constitution, as one which “limits the length of time that a person may hold or occupy a public office.”

As regards section 186 of the Constitution, a detailed analysis of that section reveals the recognition, throughout its provisions, of a specific distinction between various ages of retirement, on the one hand, and non-renewable or fixed terms of office on the other.

Thus, subsections (1), (2), (3) and (5) prescribe “the age of seventy years” as being the standard age of retirement for the Chief Justice, Deputy Chief Justice, judges of the Constitutional Court, Supreme Court, and High Court and any other judges.

In contrast, subsection (2) specifically provides for the appointment of judges of the Constitutional Court “for a non-renewable term of not more than fifteen years.” It also provides for the option of their appointment to the Supreme Court or the High Court “after the completion of their term.”

Subsection (6) enables the appointment of judges of the Supreme Court, High Court, or any other court “for a fixed term” subject to the cessation of their office upon reaching “the age of seventy-five years…, or seventy years” even if “the term of [their] appointment has not expired.”

Finally, subsection (7) stipulates, that, even though a judge “has resigned or reached the age of retirement” or “reached the end of his or her term of office” he or she may continue to sit as a judge for the purpose of dealing with any prior uncompleted proceedings.

As I understand the foregoing provisions, taken in their plain and grammatical sense, they draw a clear distinction between tenure of judicial office as delineated by specific ages of retirement and tenure as defined by fixed or non-renewable terms of office.

In certain instances, viz. in subsections (2) and (6), the two forms of tenure are combined so as to give precedence to the prescribed age of retirement over the fixed term of office.

In any event, the intention underlying all of these provisions, as I perceive it, is to differentiate rather than assimilate the criteria to be applied in determining judicial tenure of office.

The crisp question to be determined is this: What is the meaning to be ascribed to a “term-limit provision” in the context of section 328(7) of the Constitution vis-a-vis the provisions of section 186 of the Constitution as amended?

The definition of that phrase, in section 328(1) of the Constitution, would suggest, that, it refers to the limitation of a specific “length of time” as opposed to the non-specific effluxion of time.

If that is correct, it would follow, that, age, as a variable criterion, does not fix any specific length of time for holding or occupying public office, but, determines tenure by reference to the varying ages of the incumbents concerned.

This would lead to the conclusion, which I take to be correct, that, term limits, as envisaged in section 328 of the Constitution, are specifically provided for in section 186 in only two distinct instances:

(i) The first is section 186(2) which stipulates, that, judges of the Constitutional Court are appointed “for a non-renewable term of not more than fifteen years”; and

(ii) The second is section 186(6) which enables the appointment of a judge of the Supreme Court, High Court, or any other court “for a fixed term”.

In these two instances, the prescribed term limits cannot be extended so as to apply to sitting incumbents without contravening the provisions of section 328(7) of the Constitution.

Conversely, the option to continue in office for an additional 5 years, after reaching the mandated retirement age of 70 years, as contemplated in subsections (1), (2) and (3) of section 186, does not constitute the extension of any term limit.

The court a quo did not differentiate between age limits and term limits, and conflated them by ascribing a generalised meaning to term limit provisions. Consequently, it mis-interpreted and misapplied the concept of a term limit in the context of judicial tenure under the provisions of section 186 of the Constitution.

The new section 186, in subsections (1), (2) and (3), operated to amend only the previously stipulated age limit for retirement, from 70 to 75 years. It did not have the effect of amending or extending the non-renewable term limit of 15 years specified in section 186(2) or the fixed term limits envisaged in section 186(6) of the Constitution.

I am fortified in this conclusion by having regard to the dictionary definitions of the words 'term' and 'period'.

A 'term' is defined as “a fixed or limited period for which something, for example, office, imprisonment or investment, lasts or is intended to last” while a 'period' is defined to mean “a particular length or portion of time”.

In the light of these definitions, a term is a period of time, which is ordinarily measured by using a particular unit of time, and which has a known beginning and a determinable end.

Age, being a variable attribute depending upon the age of a person at any given time, does not and cannot denote any particular length or portion of time.

To illustrate this point, in a situation where two individuals, one aged 60 and the other aged 65, both enter into the same public office at the same time and are required to retire upon attaining the age of 70, the latter would be obliged to retire 5 years earlier than the former. This clearly negates the concept that an age limit constitutes a specific and determinate length of time or term limit for measuring tenure of office.

Thus, a provision that prescribes an age limit for the holding or occupation of a particular office is not a “term-limit provision” within the meaning of subsections (1) and (7) of section 328 of the Constitution.

Any other interpretation would be contrary to the ordinary and grammatical meaning of the phrase “term limit”.

By way of contrast, the Constitution abounds with a myriad of provisions that unquestionably constitute specific term limit provisions within the parameters of section 328 of the Constitution:

First and foremost, there is section 95(2) which expressly stipulates, that, the term of office of the President is 5 years and coterminous with the life of Parliament.

Then there is section 197 which provides that an Act of Parliament may limit the terms of office of chief executive officers or heads of government-controlled entities and public enterprises owned or wholly controlled by the State.

Again, in terms of section 205(2), the term of office of a Permanent Secretary is a period of up to 5 years and is renewable once only.

As regards the Defence Forces, section 216(3) states, that, the Commanders of the Defence Forces and their services are appointed for a term of not more than 5 years, up to a maximum of two terms.

With reference to the Police Service, the Intelligence Services, and the Prisons and Correctional Service, section 221(2), section 226(2) and section 229(2) provide, that, the respective heads of these services are appointed for a 5-year term which may be renewed once only.

Next, there is section 238(5), which stipulates that members of the Zimbabwe Electoral Commission are appointed for a 6-year term and may be re-appointed for one such further term.

Similarly, by virtue of section 259(4), the term of office of the Prosecutor-General is a period of 6 years and is renewable for one further such term.

Finally, section 310(3) provides, that, the term of office of the Auditor-General is a period of not more than 6 years, up to one or more periods not exceeding 12 years.

As is self-evident, the tenure of all of the aforementioned public offices is undoubtedly subject to a specific “term-limit provision” within the meaning of section 328(1) of the Constitution.

Consequently, an amendment to any such provision, the effect of which is to extend the length of time that a person may hold or occupy the public office in question, falls squarely within the ambit of section 328(7) of the Constitution.

Therefore, by dint of the restriction imposed by section 328(7) of the Constitution, such amendment does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment came into force and effect.

I now turn to consider the apparently problematic provisions of section 186(4) of the Constitution.

In its consideration of this subsection, and its relationship with section 328(7) of the Constitution, the court a quo quite correctly found, that, the former was not superfluous, particularly in the light of the presumption against superfluity in the interpretation of statutes. It also correctly opted to apply the hallowed principle of interpretation which avoids any conflict in constitutional provisions.

It accordingly read section 186(4) and section 328(7) together to arrive at the conclusion, that, section 186(4) did not apply to sitting incumbents of the judicial offices referred to in subsections (1), (2), and (3) of section 186 and that it must be understood as being applicable only to persons who are appointed to those judicial offices subsequent to the amendment of section 186.

With great respect, I am constrained by fundamental principles of legislative interpretation to reject the conclusion arrived at by the court a quo.

I fully agree that different parts of the Constitution should, to the extent that it is possible to do so, be harmoniously construed so as to avoid any conflict between them. However, it is also an established canon of construction, that, every legislative enactment must be construed, unless otherwise expressed or necessarily implied, as one that is “always speaking”.

In other words, the enactment must be construed and applied to all persons and circumstances that it governs, whether past, present or future, in order to give effect to the enactment according to its true spirit, intent, and meaning.

This time-honoured common law rule of interpretation is firmly codified in section 11 of the Interpretation Act [Chapter 1:01].

What this means, in the context of subsection (4) of section 186 of the Constitution, is that the provisions of subsections (1), (2) and (3) apply to the continuation in office of all the judicial officers referred to in those subsections, including those judges who were incumbents of their respective offices before section 186 was amended.

The plain wording of section 186(4) of the Constitution makes it unambiguously clear that its scope of coverage cannot be confined to apply to only those judges who assume the offices in question after the amendment.

This interpretation of section 186(4) of the Constitution does not, in my view, give rise to any inconsistency, absurdity, or superfluity.

The only possible interpretive difficulty that might arise relates to the application of the non-obstante clause in section 186(4) of the Constitution, i.e. “notwithstanding subsection (7) of section 328.”

In this regard, I do not agree with the submission by counsel for the fourth and fifth respondents, that, this clause modifies and amends section 328(7) of the Constitution. Nor do I accept the contention by counsel for the applicant that it operates to supersede section 328(7), for that would result in a glaring conflict between the provisions of section 186 and those of section 328.

Rather, I am inclined to construe subsection (4) of section 186 as having been inserted in order to clarify and reinforce the position that subsections (1), (2) and (3), in their amended form, do not constitute amendments to any term-limit provision.

And that being the case, they remain applicable to the continuation in office of the incumbent judgesidentified in subsection (4).

This harmonised interpretation gives full meaning and substance to section 186(4), without occasioning any infringement of section 328(7) and the restrictions on continuation in public office that its provisions are designed to impose.

I accordingly conclude, that, the provisions of section 186, taken in their totality, do not operate to amend any term limit provision as contemplated by section 328 of the Constitution.

The reasoning and judgment of the court a quo to the contrary are insupportable and must therefore be vacated.

I now turn to deal with the alleged violation of the right to equal protection of the law and the right of access to the courts.

The court a quo upheld the contentions of the third respondent in this regard and consequently found, that, section 186 of the Constitution, as amended, had the effect of violating the fundamental rights in question.

Section 56(1) of the Constitution declares that:

“All persons are equal before the law and have the right to equal protection and benefit of the law.”

Section 69(3) provides that:

“Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute.”

As regards section 56(1) of the Constitution, the court a quo opined, that, this section is wider in its scope than the equivalent section 18 in the former Constitution. This, so it reasoned, is because it qualifies the protection and benefit of the law by the use of the word “equal”.

Again, with the greatest of respect, this reasoning is fatally flawed.

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) of the Constitution.

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.

As was lucidly enunciated in Nkomo v Minister of Local Government, Rural and Urban Development & Ors 2016 (1) ZLR 113 (CC)…,:

“The right guaranteed under section 56(1) is that of equality of all persons before the law and the right to receive the same protection and benefit afforded by the law to persons in a similar position. 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.

In order to found his reliance on this provision, the applicant must show, that, by virtue of the application of a law, he has been the recipient of unequal treatment or protection, that is to say, that, certain persons have been afforded some protection or benefit by a law, which protection or benefit he has not been afforded; or that persons in the same (or similar) position as himself have been treated in a manner different from the treatment meted out to him and that he is entitled to the same or equal treatment as those persons.”

In essence, section 56(1) of the Constitution is a non-discrimination clause that guarantees equality under the law.

The applicant a quo (the third respondent in casu) did not make any allegation of unequal treatment or differentiation. He did not demonstrate that he was denied the protection of the law, while others similarly positioned were afforded such protection. He failed to show, that, the enactment or amendment of section 186 of the Constitution operated to discriminate against him in favour of others in the same or similar position.

He thereby failed to establish that he had been denied equal protection and benefit of the law.

In the event, he entirely failed to establish any infringement of the rights guaranteed by section 56(1) of the Constitution.

It follows, that, the court a quo misdirected itself in disregarding the third respondent's failure to demonstrate any unequal treatment or differentiation between him and other similarly positioned persons. Consequently, the court erred in holding, that, the continued occupation of office by the incumbent Chief Justice, after he had turned 70 years old, violated the third respondent's rights as enshrined in section 56(1) of the Constitution.

CC13-21 : ZIMBABWE WOMEN LAWYERS ASSOCIATION vs THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

This is an application for an order of leave for direct access to the Constitutional Court (“the Court”) in terms of section 167(5) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“The Constitution”) as read with Rule 21(2) of the Constitutional Court Rules SI 61 of 2016 (“the Rules”).

In the event that such leave is granted, the applicant intends to bring an application before the Court in terms of section 85 of the Constitution seeking an order to the effect, that, the definition of a “marriage” provided in section 2 of the Matrimonial Causes Act [Chapter 5:13] (“the Act”) is constitutionally invalid because it deliberately discriminates against unregistered customary unions.

The applicant accepts, that, the first respondent (Minister of Justice, Legal and Parliamentary Affairs) introduced a Marriages Bill (HB 7, 2019) (“the Bill”) in Parliament and that according to its long title its objectives are, inter alia, to consolidate the law relating to marriages, to provide for the recognition and registration of customary law unions; to provide for the recognition of civil partnerships; and to amend several statutes, including the Matrimonial Causes Act.

At the hearing of this matter the Marriages Bill (HB 7, 2019) (the Bill) apparently had been transmitted to the Senate.

A copy of the Bill was not made available to the Court. It was, however, common cause that the Bill was still to be debated in the Senate and that the processes provided for in Part 6 of Chapter 6 as read with the Fifth Schedule of the Constitution were still to be undertaken.

In these circumstances, it is unknown, at this stage, what the final fate of the Marriages Bill (HB 7, 2019) (the Bill) will be.

It would therefore be most inappropriate for this Court to make any definitive pronouncement on a matter that is still under debate by Parliament.

As the matter is not ripe for consideration by this Court, it would not be in the interest of justice that leave be granted for the applicant to approach this Court directly.

FACTUAL BACKGROUND

The applicant is a universitas whose objectives, inter alia, include dealing with all matters affecting the professional interests of women lawyers and promoting the legal status and rights of women and children.

The application in respect of which direct access is sought is an application for a declaration of rights in terms of section 85 of the Constitution.

The applicant contends, that, the definition of what constitutes a marriage under, section 2 of the Matrimonial Causes Act, is unconstitutional in three respects:

(i) First, it excludes unregistered customary law unions. Therefore, the safeguards that ensure fairness and equity in the division of property amongst spouses upon divorce are not available to women married under this regime. This amounts to discrimination and violates section 56(1) of the Constitution as the needs of the spouses and their indirect contributions during the subsistence of the union are not taken into account.

(ii) Secondly, the failure to treat unregistered customary unions as valid also violates the rights of the spouses to language and culture (section 63 of the Constitution); and

(iii) Third, human dignity (section 51 of the Constitution).

The applicant accepts that the Marriages Bill (the Bill) has been transmitted to the Senate.

Although it engaged Parliament in order to include a clause recognising the validity of unregistered customary unions, it alleges, that, its proposals were not taken up. If given leave, it will seek a declaration that section 2 of the Matrimonial Causes Act is constitutionally invalid. It will also seek an order that pending the process of remedying the defect, section 2 of the Matrimonial Causes Act be read to include an unregistered customary law union.

SUBMISSIONS BEFORE THIS COURT

Asked during oral submissions whether the matter was ripe for adjudication by the Constitutional Court, and whether this was not a matter for Parliament, counsel for the applicant, whilst acknowledging that no-one can tell at this point in time what the fate of the Marriages Bill (the Bill) in the Senate will be, as well as thereafter, argued that the matter is ripe for determination by this Court.

She stated, that, there is nothing to stop this Court from determining whether section 2 of the Matrimonial Causes Act, in its current form, is compliant with the Constitution.

She accepted, however, that it was still possible for an amendment to be effected by Parliament in the current Bill.

In her submissions, counsel for the first and second respondents, whilst conceding that section 2 of the Matrimonial Causes Act excludes customary law unions in its definition of what constitutes a marriage, argued, that, the applicant is asking this Court to usurp Parliament's law-making functions.

She further argued, that, the applicant can continue to lobby Parliament to amend the Bill to include unregistered customary marriages.

Further, there is no guarantee that the President will assent to the Bill in its current form.

Counsel, therefore, submitted that the applicant has no prospects of success because what it is asking this Court to do is take over Parliament's legislative function.

THE LAW ON DIRECT ACCESS

Direct access to the Constitutional Court is an extraordinary procedure granted in deserving cases that meet the requirements prescribed by the relevant rules of the court. Rule 21(3) of the Constitutional Court Rules prescribes what must be contained in an application of this nature. It provides as follows:

“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out –

(a) The grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and

(b) The nature of the relief sought and the grounds upon which such relief is based; and

(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence, or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”

Rule 21(8) of the Constitutional Court Rules goes on to provide:

“(8) In determining whether or not it is in the interests of justice for a matter to be brought directly to the Court, the Court or Judge, may, in addition to any other relevant consideration, take the following into account:

(a) The prospects of success if direct access is granted;

(b) Whether the applicant has any other remedy available to him or her;

(c) Whether there are disputes of fact in the matter.”…,.

It follows from sub-rule (8) above, that, the three factors itemised therein are not the only factors that may be taken into account. The Rule is clear, that, in addition, there may be other relevant considerations that this Court may take into account in deciding whether or not direct access should be granted.

Rule 21(1) of the Constitutional Court Rules provides for matters that fall within the exclusive jurisdiction of the Constitutional Court.

In respect of those matters, no other court other than this Court has jurisdiction.

The Constitutional Court, however, shares concurrent jurisdiction with lower courts in respect of the remaining constitutional matters that may require determination. It is in respect of those matters that leave to approach the court directly is required.

An applicant seeking direct access must show that it is in the interests of justice that the matter be heard directly by this Court at first instance. This is because direct access is, by its very nature, an extraordinary remedy that is granted in very few cases.

As I CURRIE and J de WAAL in The Bill of Rights Handbook, 6ed…, point out, constitutional matters cannot be brought directly to the Constitutional Court as a matter of course. If this were to be allowed, the court could get bogged down in cases in which there may be disputes of fact on which evidence might be necessary or may be called upon to decide constitutional issues which are not decisive of the litigation and which might prove to be of purely academic interest.

It is also not ordinarily in the interests of justice for any court, including this Court, to sit as a court of first instance without there being the possibility of appealing against the decision taken.

This Court, in various cases, has stressed that an applicant for direct access must satisfy two requirements:

(i) He must, firstly, show why it is in the interests of justice to have the matter determined directly by the Constitutional Court.

(ii) Secondly, he must show that the main application has prospects of success.

DOCTRINE OF AVOIDANCE, RIPENESS

It is not in dispute, that, as the law currently stands, unregistered customary law unions have very limited recognition at law. In terms of section 3 of the Customary Marriages Act [Chapter 5:07] they are recognised as valid only for the purposes of legitimacy of the children born thereto and for the distribution of property upon the death of a spouse.

The doctrine of constitutional avoidance dates back to the United States of America Supreme Court decision in Ashwander v Tennesse Valley Authority 297 US 288 (1936). In that decision, the court formulated the doctrine as consisting of seven rules, namely:

“1. The Court will not 'pass upon' the constitutionality of legislation in a friendly, non-adversary proceeding.

2. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it.

3. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.

4. The Court will not pass upon a constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed.

5. The Court will not pass upon the constitutionality of a statute unless the plaintiff was injured by operation of the statute.

6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.

7. Even if 'serious doubt[s]' concerning the validity of an act of Congress are raised, the court will first ascertain 'whether a construction of the statute is fairly possible by which the question may be avoided.'”

Rule 2, as formulated in the above cited case, constitutes what has come to be referred to as ripeness. The rule, in essence, postulates that there can be no anticipation of a constitutional issue in advance.

The principle of ripeness is therefore part of the doctrine of avoidance.

The basic rationale of the ripeness principle is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies and to protect the agencies from judicial interference until an administrative decision has been formalised and its effect felt in a concrete way by the litigating parties: see Abbot Laborates v Gardner 387 US 136 (1967).

HOEXTER, Administrative Law in South Africa, 2nd ed 2012…, describes the doctrine in the following terms:

“The idea behind the requirement of ripeness is that the complainant should not go to court before the offending action or decision is final, or, at least, ripe for adjudication. It is the opposite of the doctrine of mootness, which prevents a court from deciding an issue when it is too late. The doctrine of ripeness holds that there is no point in wasting the courts time with half-formed decisions whose shape may yet change, or indeed decisions that have not yet been made.”

In Ferreira v Levin N.O. & Ors; Vryehoek v Powell N.O. & Others 1996 (1) SA 984 CC 199 KRIEGLER J pertinently remarked as follows:

“The essential flaw in the applicant's cases is one of timing, or, as the Americans and, occasionally, the Canadians call it 'ripeness'.

That term has a particular connotation in the constitutional jurisprudence of those countries which need not be analysed now. Suffice it to say, that, the doctrine of ripeness serves the useful purpose of highlighting that the business of a court is generally retrospective; it deals with situations or problems that have already ripened or crystallised, and not with prospective or hypothetical ones.

Although, as Professor Sharpe points out, and our Constitution acknowledges, the criteria for hearing a constitutional case are more generous than for ordinary suits - even cases for relief on constitutional grounds are not decided in the air.

And the present cases seem to me, as I have tried to show in the parody above, to be pre-eminent examples of speculative cases. The time of this Court is too valuable to be frittered away on hypothetical fears of corporate skeletons.”

Ripeness therefore entails consideration of the timing of a constitutional challenge.

Where a constitutional issue can be dealt with more conveniently at a later stage and the applicant will get no tangible advantage from an earlier ruling, the doctrine of ripeness requires the applicant to wait until the Constitutional Court can ground its decision in a concrete relief.

A court will not entertain a matter if it is premature in the sense that rights or interests have not been infringed or threatened.

The term may also be used where alternative remedies have not been exhausted or an issue can be resolved without recourse to the Constitution.

Whilst the concept is not precisely defined, the position appears settled, that, if it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course that should be taken: see MAX du PLESSIS et al, Constitutional Litigation…,.

That avoidance and ripeness are part of the law of this country, there can be no doubt: see, for example, the decision of this Court in Berry (Nee Ncube) & Anor v The Chief Immigration Officer & Anor 2016 (1) ZLR 38 (CC); Katsande & Anor v Infrastructure Development Bank of Zimbabwe CC09-17; Chawira & Ors v Minister of Justice, Legal and Parliamentary Affairs & Ors 2017 (1) ZLR 117 (CC).

THE FACTS OF THIS CASE

It is common cause, that, one of the objectives of the Marriages Bill is to provide for the recognition and registration of customary law unions and to amend several statutes - including the Matrimonial Causes Act.

During the hearing of this matter, this Court was advised by counsel for the applicant that the Bill had since been passed by the National Assembly and had now been transmitted to the Senate.

That is all that is known about the Marriages Bill.

It is not known whether the National Assembly made any amendments to the Bill. It is not known what its fate in the Senate will be.

Even if the Bill is passed by both houses and presented to the President for his assent, he may refer it back to Parliament together with detailed reasons for his reservations: see section 131(5) of the Constitution. When that happens, the National Assembly must reconsider the Bill or pass it with or without amendments before it is once again referred to the President. If the President still has reservations, he must refer the Bill to the Constitutional Court for advice on its constitutionality. Further, in terms of Part 3 of the Fifth Schedule to the Constitution, neither the National Assembly nor the Senate may give a Bill its final reading unless a report of the Parliament Legal Committee has been presented to the House. An application can also be made to the Constitutional Court by a Vice-President or a Minister for a declaration that the provision, if enacted, would be consistent with the Constitution.

Regard being had to the above procedural requisites, it is unknown whether the Marriages Bill will be passed into law, and, if so, whether this will be with or without amendments.

Counsel for the applicant did concede during the hearing that an amendment to the Bill is still possible to include customary law unions in the definition of marriage.

MATTER NOT RIPE FOR ADJUDICATION

Clearly, therefore, the matter is not ripe for adjudication by this Court.

This is a matter that currently is the subject of consideration by Parliament, and, perhaps, thereafter, by the President. Indeed, in Doctors for Life International v The Speaker of the National Assembly CCT 12/05 NCOBO J, whilst dealing with the competence of the Constitutional Court to interfere with the autonomy of Parliament to regulate its internal proceedings, made the following pertinent remarks:

“(68) Courts in other jurisdictions, notably in the Commonwealth jurisdictions, have confronted this question. Courts have traditionally resisted intrusions into the internal procedures of other branches of Government. They have done this out of comity, and, in particular, out of respect for the principle of separation or powers. But, at the same time, they have claimed the right as well as the duty to intervene in order to prevent the violation of the Constitution. To reconcile their judicial role to uphold the Constitution, on the one hand, and the need to respect the other branches of government, on the other hand, courts have developed a 'settled practice' or general rule of jurisdiction that governs judicial intervention in the legislative process.

(69) The basic position appears to be, that, as a general matter, where the flaw in the law-making process will result in the resulting law being invalid, courts take the view, that, the appropriate time to intervene is after the completion of the legislative process. The appropriate remedy is to have the resulting law declared invalid. However, there are exceptions to this judiciary developed rule or 'settled practice'. Where immediate intervention is called for in order to prevent the violation of the Constitution and the rule of law, courts will intervene and grant immediate relief. But, intervention will occur in exceptional cases, such as where an aggrieved person cannot be afforded substantial relief once the process is completed because the underlying conduct would have achieved its object.”

DISPOSITION

The conclusion is inescapable, that, the issue raised in this application is not ready for adjudication by this Court. Until the fate of the Marriages Bill is known, it would not only be inappropriate and unwise, but also premature, for this Court to make a determination on the constitutionality of the definition of marriage in section 2 of the Matrimonial Causes Act.

I find, therefore, that, it is not in the interest of justice that leave for direct access be granted to the applicant.

On the question of costs, I find no reason to depart from the normal practice of this Court not to award costs in constitutional applications.

In light of this conclusion, it becomes unnecessary to determine whether or not the applicant has an alternative remedy at its disposal.

In the result, the following order is made:

“The application is dismissed with no order as to costs.”

CC03-22 : DIANA KAWENDA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HEALTH AND CHILD CARE and THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MAKARAU JCC, HLATSHWAYO JCC and PATEL JCC

On 20 January 2020, the High Court dismissed with costs, an application to that court by the appellant and another who is not before us, challenging the constitutional validity of the law that governs the age at which children can consent to sexual activities.This is an appeal against that order.BackgroundThe ...

Background

The appellant and another champion of women and children's causes and rights approached the High Court seeking, in the public interest, an order the main thrust of which was to declare the criminal law which governs the age of consent to sexual activities unconstitutional.

The second applicant a quo did not apply for condonation for the late filing of this appeal, which the appellant successfully did. Whilst the second applicant a quo is not before us, where relevant and unavoidable, reference shall be made to the averments that she made.

Further and for convenience, where reference is made to the proceedings a quo, the parties thereto shall be referred to as “the applicants” and “the respondents” respectively.

The locus standi of the applicants to bring the application a quo was not in dispute.

It was accepted by all the respondents, and the court a quo, that, the applicants could bring, in the public interest, a challenge to the constitutionality of sections of Part III of Chapter V of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”).

Creating criminal offences punishable at law, the Criminal Law (Codification and Reform) Act, in its language, prohibits extra-marital sexual intercourse and the performing of indecent acts with a young person, who it defines, in section 61(1), as a boy or girl under the age of sixteen years.

This, of course, must be read in the context of the decision of this Court in the matter of Mudzuru and Another v Minister of Justice, Legal and Parliamentary Affairs 2016 (2) ZLR 45 (CC) in which child marriages were outlawed.

I return to this point in detail later.

The Criminal Law (Codification and Reform) Act also penalizes owners or occupiers of property who knowingly permit another person or persons to commit the offences on their property or detain a young person with the intention that such offences be committed against the young person. The Criminal Law (Codification and Reform) Act further prohibits the procuring of young persons for the purposes of prostitution in addition to prohibiting property owners from allowing young persons to remain on one's property for the purposes of sexual activities.

The above constitutes the content of the impugned law.

Whilst bringing the application a quo in the public interest and therefore not alleging that the impugned law infringes their personal rights, both applicants, now adults, narrated, in their founding affidavits, their personal experiences which they argued could have been avoided had the protection afforded to children under sixteen years of age been extended to all children. They were both child-brides and the second applicant was a mother of two by the age of nineteen.

Having noted the disparity between the definition of a “young person” in the impugned law and of a “child” in the Constitution, the applicants approached the court a quo seeking an order in the following terms –

“It is declared that –

1. The definition of 'young person' and reference to 'below the age of sixteen years' in the below sections of the Criminal Code [Chapter 9:23] are unconstitutional to the extent that they do not include all children under the age of 18 in violation of section 81 of the Constitution.

2. The sections of the Criminal Code [Chapter 9:23] which fail to protect all children under the age of 18, are inconsistent with section 81 of the Constitution and are thus unconstitutional to the extent of the inconsistency.

3. The current age of sexual consent, set at 16 by section 70 of the Criminal Code [Chapter 9:23] is inconsistent with section 81(1)(e) of the Constitution of Zimbabwe.

4. The current age of consent, set at 16 years old, violates the rights and protection for girls including human dignity under section 51, equality and non-discrimination under section 53, right to education under section 81(1)(c), healthcare under section 81(1)(f) and best interests under section 81(2) of the Constitution of Zimbabwe.

5. The respondents pay the costs of suit.”

In seeking the above order, the applicants relied on the findings of this Court in Mudzuru and Another v Minister of Justice, Legal and Parliamentary Affairs 2016 (2) ZLR 45 (CC) on the harmful effects of marriage on children - especially on girls. They incorporated into their application these findings and the scientific evidence referred to in that judgment.

The application a quo was opposed.

In addition to placing his views before the court in an opposing affidavit, the second respondent was content to abide by the decision of the court.

The parties made lengthy and detailed arguments a quo. It is not necessary that I burden this judgment with these.

Despite the lengthy and detailed arguments that the parties advanced a quo, the sole issue that fell for determination before that court was whether the impugned law is unconstitutional on any one or more of the grounds advanced by the applicants.

With respect, the issue was not, as consumed by the court a quo, a determination of the age at which children should have their first sexual experiences.

The Decision a quo

As indicated above, the court a quo dismissed the application with costs. In dismissing the application, the court made a number of findings. It is necessary that I set out some of these in detail.

Right from the outset, the court a quo set out –

“to examine trends (world-wide) on age of sexual consent, age of marriage, child development, and the effect of raising to 18 years the age on sexual consent on child protection and whether section 70 (of the Code) and related sections are unconstitutional.”

Whilst there was nothing intrinsically wrong in setting the inquiry this wide, the court a quo thereafter disproportionately devoted its time and industry to the introductory issues at the expense of the primary issue that was before it.

It thereafter largely focused on whether the age of consent in Zimbabwe should be raised from sixteen to eighteen; in itself an important debate, but, one that was not before it.

Scant regard it paid to the question whether or not the impugned law is inconsistent with the Constitution.

For instance, citing a report by UNICEF, UNESCO, UNWOMEN, UNPFA and UNDP 2019, on Adolescent Consent to Marriages and Sexual Activity and Access to Sexual Reproductive Health Services in Light of the Zimbabwe Marriages Bill 2019, the court found, that, it is a notorious fact that children in Zimbabwe are indulging in sexual activities from an early age. Forty per cent of girls and twenty-four percent of boys are sexually active before they reach the age of eighteen.

In view of the issue that was before the court, the finding by the court, in this regard, did not add any colour or flavour to the constitutional question that was before it.

Further, this finding was made on evidence procured through the court's own industry. The various United Nations Agencies reports that the court relied upon in making this finding were not tendered as evidence by any of the parties.

I return to this point later in the judgment.

It appears, that, the court a quo made the finding that children are engaging in sexual activities from early ages to buttress its next finding, that, although children need to be protected from sexual abuse and exploitation, it needs to be equally acknowledged that adolescents naturally start exploring their sexuality and engaging in consensual sexual activity with their peers.

The court then accepted, wholesale, the arguments of the first and third respondents, that, raising the age of consent from sixteen to eighteen does not per se prevent adolescents from engaging in sexual activity with their peers but leads to the criminalization of adolescents as sex offenders. This, in turn, creates barriers for the adolescents against accessing sexual and reproductive health care services.

It was thus the conclusion of the court a quo, that, laws, on their own, cannot prevent children from engaging in sexual activities, and, in particular, that raising the age of consent from sixteen to eighteen cannot per se prevent children from having sexual intercourse.

Quite clearly, the court a quo was concerned with the need to allow children, particularly adolescents, “legal” space within which to explore their sexuality with their peers.

With respect, this was not the constitutional issue that the applicants had raised.

As indicated above, the application before the court did not require the court to make a finding on the appropriate age at which children should be allowed to have their first sexual experiences. The application challenged the constitutional validity of the law that seeks to protect children from sexual exploitation.

I also note, in passing, that, in the context of our law, where children under the age of sixteen are not automatically prosecuted for having sexual intercourse with a peer, the finding by the court a quo, that, affording protection to all children from sexual exploitation will lead to children being criminalized as sex offenders is somewhat startling.

It is not based on a correct interpretation of the law, and, more importantly, it was not directly relevant to the issue that was before the court.

In finding that the raising of the age of consent to afford protection to all children will create barriers for the adolescents in accessing sexual and reproductive health services, the court a quo was persuaded by the observations by the UN Agencies reports, that, setting the age of sexual consent for children higher than the impugned law allows would result in caregivers and institutions being dis-empowered from responding to adolescents sexual and reproductive health issues because they would fear being in conflict with the law that criminalizes such behaviour.

It accepted this observation as the basis of its decision.

Later on in the judgment, the court a quo expanded on its views in this regard by expressing unfavourable views against laws that seek to set “a high age of consent” as such laws are often used to curb adolescent and women's agency. It reiterated its earlier finding that adolescents have to be equipped with the necessary information that empowers them to protect themselves from the risks of early sexual activities, for, when left to deal with these issues on their own, they tend to engage in more risky behaviour and exhibit poor decision making skills.

It was thus its view, that, equipping children with the necessary information would strike a fine balance between their best interests and their enhanced protection. In this regard, the court adopted, wholesale, the submissions by the first respondent on adolescent sexuality and that affording them adequate and appropriate sexual and reproductive health information was adequate protection for them against sexual exploitation.

The need to enable and allow adolescents to make choices as to when and with whom to have sexual relations dominated the reasoning of the court a quo to the exclusion of the real issue.

As indicated above, and respectfully so, the court a quo set its inquiry too widely, and, in the process, its compass would, most of the time, veer from directing it to the real issue that was before it. Because it had set out to examine worldwide trends in settling the age of marriage, an issue that was clearly not before it, the court a quo saw the applicants case as seeking to conflate the age of marriage with the age of consent to sexual activities and held thus –

“…, efforts to conflate the age of marriage with the age of sexual consent can be particularly harmful for girls as they can deny them the right to make decisions about whether, when, and with whom to have sex. They can also stigmatize as criminals individuals who have sex before marriage and increase barriers to accessing sexual and reproductive health services.”

The court a quo however accepted that “there should be penal provisions in our statutes to deal with adults who have consensual sexual activity with children aged between 16 and 18 years.”

This finding by the court a quo was apparently made oblivious to the fact that this, in essence, was at the heart of the application which the court went on to dismiss.

In answer to the question whether the impugned law was in violation of the Constitution or ultra vires the Constitution, as the court a quo put it, the court referred to the many findings it had made and which I have detailed above.

It specifically found, that, the Criminal Law (Codification and Reform) Act (the Code) does not in any way violate children's rights to dignity and that the relevant law was meant to fulfil children's rights to health care as guaranteed in the Constitution.

As its ratio decidendi perhaps, and in dismissing the application, the court a quo expressed itself thus –

“In this case, the applicants are targeting the provisions of the Criminal Law (Codification and Reform) Act as being unconstitutional in its interpretation of child or young person. They forget that there are a plethora of other Acts that define child that is a boy/girl and young person in the same manner that is not consistent with the definition given in the Constitution. Even if this court is to declare the definition in section 61 or 70 of the Code unconstitutional, what is going to happen to the definitions in other statutes?…,.

Therefore, the mischief which the applicants want to be corrected cannot be corrected by merely declaring sections 61 and 70 of the Code as unconstitutional. It will only amount to a patching exercise. A wholesome approach is required. The solution lies in harmonizing the current statutes with the Constitution. Even after harmonization, it is my considered view, that, this will not per se protect the adolescents.

What is required is a strong multi-sectorial approach in educating the girl or boy child of the evils of indulging in early sexual activities without the necessary precaution. For the above reasons I will dismiss the application with costs.”

It thus found, that, the impugned law was not unconstitutional because it was not the only law that violated the Constitution. It also found, that, the impugned law was not unconstitutional as declaring it so would not, in itself, afford effective protection to children against the risks of indulging early in sexual activities.

Being seized with a constitutional issue, the court a quo did not, at any point in its judgment, attempt to interpret the relevant constitutional provisions and establish what the law on the rights of children provides.

The Appeal

Dissatisfied with the order dismissing the application with costs, the appellant noted this appeal. In the notice of appeal, the appellant raised three grounds of appeal as follows:

1. The court a quo grossly erred and misdirected itself in failing to hold, that, the age of sexual consent in Zimbabwe should be eighteen given the provisions of section 81(1) of the Constitution.

2. Put differently, the court a quo erred in failing to hold, that, the current age of sexual consent, set at sixteen by section 70 of the Criminal Code [Chapter 9:23] was inconsistent with section 81(1)(e); 81(1)(f) 81(2) and sections 51 and 53 of the Constitution of Zimbabwe.

3. The court a quo erred in awarding costs against the applicants in a constitutional matter of public importance.

The first and second grounds of appeal raise the same issue. It is a very narrow issue. It is whether the impugned law is inconsistent with the provisions of the Constitution as alleged by the appellant or at all.

The issue is neither a debate on whether the age of consent to sexual activities should be raised from 16 to 18, a question that consumed the court a quo, nor the complex and broader biological-social-moral issue that questions the age at which children should be allowed to have sexual relationships with each other and/or with adults.

The third ground of appeal is clear and straightforward. It challenges the award of costs a quo.

Oral Arguments

Counsel for the appellant raised one simple argument. After correctly identifying the issue before the Court as the constitutionality or otherwise of section 70 of the Criminal Law (Codification and Reform) Act (the Code) and other related sections of the Code that prohibit sexual relations with young persons, he argued, that, the definition of young person in the Code is in conflict with the provisions of section 81(1)(e) of the Constitution which fixes the age of protection from sexual exploitation for all children at eighteen (18).

In attacking the correctness of the decision a quo, counsel for the appellant pointed out, that, the court made findings of fact in favour of the respondents on evidence that the respondents had not placed before it.

I have referred to this observation above, expressing my view, that, the findings of fact, even if they had been made on evidence properly before the court, did not colour or flavour the issue that was before the court one way or the other.

For the avoidance of doubt, however, I do not place any weight on such findings as they were made in an irregular fashion.

Responding to interjections by the Court, counsel for the appellant accepted, that, the development of children is evolutionary, and that, as they grow older, they interact and respond to the world around them. He further accepted that later, during adolescence, children should be able to explore and understand their bodies. He however maintained his argument that the Constitution has pre-set the age at which children should be protected from harmful sexual activities.

In further engagement with the court, counsel for the appellant submitted, that, section 81(1) of the Constitution protects all children from all sexual activities. To hold that it only protected children from sexual exploitation would, in his view, be a narrow construction of the provisions of the Constitution.

In apparent reference to the issue of children engaging in sexual activities with their peers from an early age, counsel for the appellant submitted, that, the legislature must deal with the issue of children having sexual relations with other children and other related issues, such as child pornography and access to harmful sexual content by children on the internet, for example, by enacting a Children's Protection Act.

It was counsel for the appellant's further submission, that, expert evidence is necessary before the law can strike a fine balance between the rights of children to dignity, on the one hand, and benevolent paternalism, on the other, which is necessary to protect them from making choices that may be harmful to their interests due to immaturity and youthfulness.

In addition to expert evidence, he submitted, that, the widest stakeholder input must be sought during the crafting of a law that seeks to strike this balance. His suggestion was that churches, traditional leaders, and a wide spectrum of societal representatives be engaged to input into such a law.

In defending the correctness of the decision a quo, counsel for the respondents argued, that, the matter that was before the court a quo, and is before us, is sociological in nature and required the applicants to have placed expert evidence before the court, which evidence the appellant did not tender.

In the absence of such evidence, it was his submission, that, the court a quo correctly researched, on its own, to enable it to come to the correct decision.

In this regard, he referred the court to The Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Others CCT 12/13 [2013] ZACC 35, in which the appellants therein had led, a quo, expert evidence from a child psychiatrist and a clinical psychologist specializing in child mental health on the sexual development of children.

Counsel for the respondents further submitted, that, the matter raised by the application was not for the Court to draw the line and determine the appropriate age at which children should be allowed to engage in sexual activities with their peers and/or with adults, but was a matter for the whole community of Zimbabweans to debate and agree upon.

It was his further view, that, placing that age below eighteen would not be inconsistent with the Constitution as it is within the competence of the legislature to identify groups of children that are especially vulnerable and deserve protection.

In defending the impugned law, counsel for the respondents submitted, that, children above the age of sixteen are capable of meaningfully consenting to sexual conduct. The law allows them to make choices and therein lies their protection.

Thus, his argument continued, the difference in the definition of young person in the law, to exclude children between sixteen and eighteen, is by design. It is meant to afford such children a measure of choice and thereby uphold their right to personal dignity.

Upon the interjection of the court, counsel for the respondents conceded, that, the impugned law pre-dates the adoption of the Constitution and so does the Children's Act referred to in the judgment a quo.

He further conceded, that, the Children's Act defines a child as a boy or girl under the age of sixteen and that this could possibly have informed the definition of young person in the impugned law.

As such, what was required was a simple exercise of aligning the impugned law to the Constitution.

Again, in an engagement with the court, counsel for the respondents argued, that, the alleged discrimination of children, by age, in the impugned law, if the court was inclined to make that finding, is permissible by virtue of section 86 of the Constitution which allows discrimination in terms of a law of general application that is necessary in a democratic society based on openness, justice, human dignity, equality, and freedom.

When it was brought to his attention that the impugned law, as read with the decision of this Court outlawing child marriages, meant that children in the sixteen to eighteen year bracket were not only left without legal protection against sexual abuse and exploitation but could not lawfully marry if the girl child fell pregnant, counsel for the respondents could only submit, that, there was adequate protection for all children in the current law without elaborating further.

In apparent response to the argument by counsel for the appellant, that child sexual activity of all colour and shades should be outlawed following the outlawing of child marriages, counsel for the respondents argued, that, there is no basis in our law for holding that sexual activities belong to marriages only.

Regarding the argument that the impugned law violated the rights of children to access health care services, counsel for the respondents submitted, that, the fixing of the age of consent to sexual activities does not in any way affect the rights of children to access health care services as guaranteed by the Constitution.

This was his position notwithstanding the observations that care givers are reluctant to offer their services to children below the age of consent for fear of violating the law, and, conversely, that children below the age of consent are scared to seek such services for fear of being labelled “too young” to need such services.

It was counsel for the respondents final argument, that, the fixing of the age of consent, at sixteen (16), was in the best interests of the children as it afforded children above that age the opportunity to make choices and to explore their sexuality.

The Law

The issue that is before this Court is whether the law, in section 70 and other related sections of the Criminal Law (Codification and Reform) Act (the Code) which create offences prohibiting extra marital sexual intercourse and the performing of indecent acts with young persons, as read with section 61 of the Code, are in conflict with section 81(1) and (2), section 70, section 56 and section 53 of the Constitution.

Put differently, the issue is whether the impugned law is inconsistent with the Constitution as alleged or at all.

The issue is neither novel nor complex. It is an issue that involves an interpretation of the relevant provisions of the Constitution and comparing the effect of the impugned law on such provisions, properly construed.

There is an expansive body of jurisprudence from this jurisdiction and beyond on the approach that a court must take when determining whether a statute or other law is in conflict with the Constitution.

One begins with an interpretation of the relevant provisions of the Constitution. The purpose of interpreting the Constitution first is to set the framework, the backdrop, or the yardstick against which the impugned law will then be examined or measured.

One starts with a discernment of the law: see Zimbabwe Township Developers (Pvt) Ltd v Lous Shoes (Pvt) Ltd 1983 (2) ZLR 376 (SC)…,.; and Democratic Assembly for Restoration and Empowerment & Ors v Suanyama CC18-18.

In interpreting the Constitutional provisions, the ordinary rules of interpretation of statutes apply. The Constitution is but a statute.

It is, however, settled, that, in interpreting Constitutional provisions, the preferred construction “is one which serves the interest of the Constitution and best carries out its objects and promotes its purpose:” see Rattigan and Others v The Chief Immigration Officer and Others 1994 (2) ZLR 54.

See also Smythe v Ushewokunze and Another 1997 (2) ZLR 544 (S).

In particular, when interpreting provisions that guarantee fundamental rights, the widest possible interpretation is adopted to give each right its fullest measure or scope.

After interpreting the appropriate provisions of the Constitution, one then presumes that the impugned law is constitutionally valid. The presumption of constitutional validity serves, firstly, to place the onus on whoever is alleging invalidity to prove such invalidity, and, secondly, and equally important, to guide the court in interpreting the impugned law in favour of validity where the piece of legislation is capable of two meanings.

The presumption holds, that, where a piece of legislation is capable of two meanings, one falling within and the other falling outside the provisions of the Constitution, the court must perforce uphold the one that falls within.

The presumption in favour of constitutionality is entrenched in our law.

As the next and final logical step, the Court must then examine the effect of the impugned law on the fundamental right or freedom in question.

If the effect of the impugned law is to abridge a fundamental right or freedom or is inconsistent with the provisions of the Constitution providing for the right or freedom, the object or subject matter of the impugned law will be less important or irrelevant: see In re Mhunhumeso 1994 (1) ZLR 49 (S).

If the court finds the impugned law to infringe upon a fundamental right or freedom, or to be inconsistent with the provisions of the Constitution on a fundamental right or freedom, the court must proceed to determine whether the infringement or inconsistency is permissible in terms of section 86(2) of the Constitution.

The step by step approach that I have laid out above is to be found in a line of cases that includes Zimbabwe Township Developers (Pvt) Ltd v Lous' Shoes (Pvt) Ltd 1983 (2) ZLR 376 (SC); In re Mhunhumeso 1994 (1) ZLR 49 (S); James v Zimbabwe Electoral Commission and Others 2013 (2) ZLR 659 (CC); and Democratic Assembly for Restoration and Empowerment & Ors v Suanyama CC18-18.

Analysis

The court a quo did not, at any stage, advert to or take the approach set out above. It did not seek guidance from any of the many cases in which the approach has been discussed. In particular, the court a quo did not seek to interpret section 81(1) of the Constitution to give it its true meaning before upholding the constitutional validity of the impugned law.

Thus, there was no debate in the judgment of the content of the fundamental right or freedom that was allegedly infringed and the extent of the infringement, if any.

How the court, in the circumstances, proceeded to uphold the constitutional validity of the impugned law without first interpreting the Constitution becomes incomprehensible.

As this court stated in Democratic Assembly for Restoration and Empowerment & Ors v Suanyama CC18-18:

“The Constitution is properly interpreted first to get its true meaning. Only thereafter is the challenged legislation held against the properly constructed provision of the Constitution to test its validity.”

Having erroneously overlooked the supremacy of the Constitution and the need to interpret it first in the matter that was before it, the court a quo, somewhat convolutedly, reasoned in the concluding paragraph of its judgment –

“…, the mischief which the applicants want to be corrected cannot be corrected by merely declaring sections 61 and 70 of the Code as unconstitutional.”

It erroneously gave supremacy to the provisions of the Code and the object and subject matter of the impugned law.

The court thus shied away from its primary role, of declaring itself on the constitutionality or otherwise of the impugned law. This was the sole issue that was squarely before it, and, by deliberately avoiding it, the court a quo fell into a grave error. It ended up on a frolic of its own, deciding on whether or not laws alone can stop adolescents from engaging in sexual activities.

Thereafter, the court sought to justify the continued sufferance of the impugned law on the basis that the solution to the many issues raised in the application was to be found possibly in harmonizing with the Constitution all the current statutes that defined a child as a boy or girl under the age of sixteen.

In holding that the impugned law was justifiable, the court a quo did not go anywhere near invoking the provisions of section 86(2) of the Constitution or the common law principles enunciated in the long list of cases that I have referred to above.

Section 86(2) of the Constitution, which embodies the common law, provides for the limitation of fundamental rights in terms of laws of general application and to the extent that the limitation is fair, reasonable, and necessary in a democratic society.

In the absence of a prior finding that the impugned law did in fact infringe children's fundamental rights, as alleged by the applicants, a justification of the impugned law, on any basis, was idle.

Curiously, the court a quo justified the current law on the basis that it was similar to other laws that also contradicted the Constitution and held that a wholesale alignment of all such laws was the answer to the mischief that the applicants sought to cure.

The court a quo even doubted the efficacy of the constitutional alignment exercise as, in its view, this would not stop adolescents from engaging in sexual conduct.

On the basis of the above, the decision a quo cannot stand. I accordingly set it aside.

Having set aside the decision of the court a quo, it remains for me to determine the matter in accordance with the settled approach...,.

Section 81(1) of the Constitution provides that –

“(1) Every child, that is to say every boy and girl under the age of eighteen years, has the right -

(a)…,.

(b)…,.

(c)…,.

(d)…,.

(e) To be protected from economic and sexual exploitation, from child labour, and from maltreatment, neglect, or any form of abuse;

(f)…,.

(g)…,.

(h)…,.

(i)…,.”...,.

Without specifically defining the term 'child' the section provides, by way of re-iteration, that, a child is a boy or girl below the age of eighteen.

The significance of the first part of the provision is the fact that it settles the definition of the term “child” for any other law or practice in the jurisdiction as a boy or girl under the age of eighteen, and, any law, practice, custom, or conduct, that defines a child differently becomes ipso facto inconsistent with the Constitution in that regard and to that extent....,.

The term “sexual exploitation” has not been defined for the purposes of the relevant section.

The ordinary meaning of the word 'exploitation' is “taking advantage of.”

In its widest sense, therefore, sexual exploitation is taking advantage of a child's consent to sexual conduct....,.

The Criminal Law (Codification and Reform) Act (the Code) provides, in section 70, that –

“(1) Subject to subs (2), any person who —

(a) Has extra-marital sexual intercourse with a young person; or

(b) Commits upon a young person any act involving physical contact that would be regarded by a reasonable person to be an indecent act; or

(c) Solicits or entices a young person to have extramarital sexual intercourse with him or her or to commit any act with him or her involving physical contact that would be regarded by a reasonable person to be an indecent act; shall be guilty of sexual intercourse or performing an indecent act with a young person, as the case may be…,.”

Whilst section 76 of the Criminal Law (Codification and Reform) Act provides –

“Complicity in Sexual Crimes

For the avoidance of doubt, it is declared that any person who –

(a) Being the owner or occupier of any premises, knowingly permits another person on the premises to commit rape, aggravated indecent assault, indecent assault, sexual intercourse or performing an indecent act with a young person, sodomy, bestiality or sexual intercourse within a prohibited degree of relationship; or

(b) Detains a person with the intention that a crime referred to in para (a) should be committed by another person against the person so detained; may be charged with being an accomplice or accessory to the commission of the crime concerned, or with kidnapping or unlawful detention, or both.”

I also include in this debate the provisions of section 83 of the Criminal Law (Codification and Reform) Act which make it an offence for any person to procure children below the age of sixteen for the purposes of prostitution and the provisions of section 86 of the Code which make it an offence for any person to permit children under the age of sixteen to remain on his or her premises for the purposes of sexual activities....,.

It suffices for the purposes of this judgment to accept that the crimes or conduct that are described in sections 70, 76, 83 and 86 of the Criminal Law (Codification and Reform) Act (the Code) afford examples of the conduct that amounts to the sexual exploitation of children and from which children should be protected....,.

The appellant argues, in the main, that, the constitutional imperative in section 81(1)(e) of the Constitution is that every child must be protected from sexual exploitation.

The Criminal Law (Codification and Reform) Act (the Code), in the impugned sections, protects some and not every child. It leaves out the sixteen to eighteen year old children. In this regard, it is inconsistent with the provisions of the Constitution and infringes the rights of the children left out of the protective ambit of the law.

I agree.

The effect of the impugned law is not only to fail to protect those children that are between sixteen and eighteen, it particularly fails to protect all children in child marriages. The impugned law denies some children the protection that the Constitution demands. It cannot therefore “disobey” the Constitution and hope to remain constitutional.

As was stated in In re Mhunhumeso 1994 (1) ZLR 49 (S) –

“The test in determining whether an enactment infringes a fundamental freedom is to examine its effect and not its object or subject matter. If the effect of the impugned law is to abridge a fundamental freedom, its object or subject matter will be irrelevant.”…,.

This is why I had difficulties in appreciating the argument by counsel for the respondents that –

“…, the placing of that age (the age of consent) below 18 would not be inconsistent with the Constitution as it is within the competence of the legislature to identify groups of children that are especially vulnerable and deserve protection.”

The Constitution has already spoken and has supremely demanded that every child be protected. There is therefore no room to leave some children out of the protective tent.

In holding as I do, it is not being suggested for a moment that children of all ages are entitled to the same protection.

The criminal law has, for ages, differentiated children, by age, for the purpose of ascribing criminal intention to children in conflict with the law. Similarly, the criminal law has differentiated the gravity of sexual offences committed upon and with the consent of children, using the age of the child to define the offence.

The point made by the application a quo, which I fully agree with, is that all children must be protected from sexual exploitation as demanded by the Constitution.

This is supremely imperative even if the levels of protection may decrease with age to recognize that the development of a child is evolutionary, and, as he or she grows older, a child interacts and responds to the world around him or her such that later, during adolescence, he or she should be able to explore and understand his or her body.

The impugned law does not offer any protection whatsoever to children between sixteen (16) and eighteen (18) - even in an attenuated form. It does not acknowledge them at all.

More importantly, in my view, the impugned law does not offer any protection to children in child marriages. It remains a complete defence, under the impugned law, that the accused is married to the child....,.

I now turn to examine whether the denial of the right to protection to some of the children is justifiable in terms of the Constitution or at common law.

Is the infringement fair, reasonable, necessary, and justifiable in a democratic society based on openness, justice, human dignity, equality, and freedom?

As stated above, the infringement in casu is a complete denial of the right of protection from sexual exploitation to children aged between sixteen and eighteen and to all children in child marriages.

In my view, where the infringement of a fundamental right is a complete negation of the right, there hardly exists any scope for arguing that such complete negation of the right is a justifiable limitation of the right under the common law and/or section 86(2) of the Constitution.

Although this is not clearly articulated as such in Mudzuru and Another v Minister of Justice, Legal and Parliamentary Affairs 2016 (2) ZLR 45 (CC), this Court did not seek justification of the law on child marriages under section 86(2) of the Constitution because the law permitting such marriages was in direct conflict with the provisions of the Constitution on the issue. It completely obliterated the rights of children to be protected from any form of marriage. In consequence whereof the Court held that:

“The effect of section 78(1) as read with section 81(1) of the Constitution is very clear. A child cannot found a family. There are no provisions in the Constitution for exceptional circumstances. It is an absolute prohibition in line with the provisions of Article 21(2) of the ACRWC. The prohibition affects any kind of marriage whether based on civil, customary, or religious law.

The purpose of section 78(1) as read with section 81(1) of the Constitution is to ensure that social practices such as early marriages, that subject children to exploitation and abuse, are arrested. As a result, a child has acquired a right to be protected from any form of marriage.”…,.

It was thus the view of the Court, further in the judgment, that –

“…, section 78(1) of the Constitution abolishes all types of child marriage and brooks no exception or dispensation as to age based on special circumstances of the child.”

No argument was pressed on us that there is a basis for justifying the complete denial of protection, to children above sixteen years and to children in child marriages, the protection that is demanded by section 81(1)(e) of the Constitution.

There can be no such justification in the face of the clear provisions of the Constitution that demands that every child be protected from sexual exploitation.

HH24-19 : MOHAMMED ISMAIL (as the guardian of X - a minor) vs SAINT JOHNS COLLEGE and CAVALIERE COORRADO TRINCI N.O. and STEVE MARTIN N.O. and MINISTRY OF PRIMARY AND SECONDARY EDUCATION
Ruled By: CHITAKUNYE J

This is a chamber application brought on a certificate of urgency. The provisional order the applicant seeks was couched as follows:“FINAL ORDER1. That, the conduct of the 1st, 2nd and 3rd respondents consisting of ordering X, a minor enrolled as an Upper Six student at the 1st Respondent, to shave ...

This is a chamber application brought on a certificate of urgency. The provisional order the applicant seeks was couched as follows:

“FINAL ORDER

1. That, the conduct of the 1st, 2nd and 3rd respondents consisting of ordering X, a minor enrolled as an Upper Six student at the 1st Respondent, to shave his beard as a pre-condition to the continuation of his studies at the 1st Respondent, be and is hereby declared null and void and of no force or effect as an infringement of his right to freedom of religion protected by section 60 of the constitution of Zimbabwe.

2. That, the conduct of the 1st, 2nd and 3rd respondents consisting of ordering X, a minor enrolled as an Upper Six student at the 1st respondent, to shave his beard as a pre-condition to the continuation of his studies at the 1st respondent, be and is hereby declared null and void and of no force or effect as an infringement of his right not to be discriminated against on account of religion, such right being protected by section 56 of the Constitution of Zimbabwe.

3. That, the minor, X, be and is hereby allowed to remain a student of the 1st respondent while at the same time keeping his beard in accordance with the Islamic religion.

4. The respondents who oppose this order shall pay the costs of this application on a legal practitioner and client scale.

INTERIM RELIEF:

Pending determination of this matter, the Applicant is granted the following relief:

It is ordered that:

1. That, the 1st, 2nd, and 3rd respondents be and are hereby interdicted from barring X from entering the premises of the 1st respondent for purposes of continuing with his Upper Sixth Form studies notwithstanding the fact that the aforesaid Yusuf Ismail is not shaving his beard.

2. That, the 1st, 2nd and 3rd respondents be and are hereby interdicted from insisting, directly or indirectly, that X shaves his beard as a pre-condition to him continuing with his Upper Sixth Form studies at the 1st respondent.

3. That, the respondents who oppose this order shall pay the costs of this application on a legal practitioner and client scale.”

The basic facts leading to this application were that:

The applicant enrolled his son, X (hereinafter referred to as the minor), at St Johns College in 2013. At the time of enrolment, the applicant signed a contractual document 'Acceptance of Entry' in which were stated the conditions for the acceptance of the minor at St. Johns College. Amongst the terms and conditions that the applicant unequivocally accepted were clauses 2 and 3 which stated that:

“2. That, the student will be bound by all rules and requirements as laid down by the college from time to time in both academic and extra-curricular activities.

3. That, in particular, the student will be bound by the St. Johns College Code of Conduct as amended from time to time.”

The Code of Conduct stipulated the conduct that was expected from all the students without discrimination.

The particular aspect that led to this case pertains to the requirement that all students be cleanly shaven.

At the time of enrolling at the college, the minor had not yet developed a beard. However, towards the end of 2018, he developed a beard.

It is common cause, as between the parties, that, in terms of the Code of Conduct, the minor was expected to shave the beard.

In recognition of this regulation, and as the minor had already been advised to be cleanly shaven in terms of the regulation if he was to continue at the school, on the 1st of October 2018 the applicant wrote a letter to first respondent requesting that the minor be allowed to grow his beard. That letter stated, inter alia, that:

“This letter serves as a humble request to allow my son, X (L6S), to keep his beard. It is imperative that he does not shave his beard for religious purposes. X leads congregational prayers at the mosque, and, it is not permissible for those who lead the prayer to remove their beards.”

After acknowledging the valuable role played by the Regulations, in moulding boys into responsible men, the applicant proceeded to say:

“Allowing Yusuf to keep his beard will permit him to practice his faith without it interrupting his education.”

On the 3rd of October, the first respondent responded to the request with a clear NO in, inter alia, these words:

“Please note, that, we no longer grant exemptions to these requests under any circumstances, and, hence, your appeal for X to keep facial hair on religious grounds is denied. He has to shave and follow our regulations to the letter as outlined in the code of conduct.”

Despite what should have been a clear response, on the 28th of December 2018, the applicant, through his legal practitioner, wrote to the first respondent inquiring if the first respondent would carry out what he termed its threat to bar the minor from attending school if he did not shave his beard.

That letter did not yield a positive response as the first respondent indicated it was yet to refer the applicant's letter to its legal practitioners for a response as the college had been closed as from 14 December and had just opened and so was yet to consult its legal practitioners.

As the 2019 first school term drew closer, the applicant paid school fees for the minor but the school would not allow the minor to attend school without complying with the requirement to be cleanly shaven.

As a consequence, the applicant launched this application.

It is pertinent to note, that, the fact that the applicant and the minor are Muslims is common cause. In this application, the applicant emphasised the fact, that, there is a family tradition in their family to be an Imam. In this regard, the minor is studying to be an Imam hence he is now leading a congregation in prayers. It is in that respect that he said the minor has to strictly adhere to the Islamic requirement for male persons not to shave the beard. The applicant alleged, that, by refusing to allow the minor to attend school without shaving, the school is effectively asking the minor to abandon his religion.

He also alluded to the infringement of the minor's freedom to religion, protected by section 60 of the Constitution, by ordering him to shave his beard before he can be allowed into the school premises.

Other sections he said were infringed include sections 56 and 75 of the Constitution.

The first to third respondents opposed the application....,.

As regards the merits of the application, the respondents contended, that, they were not infringing on the minor's rights. Whilst it was common case that the applicant and the minor are Muslims, it was the applicant who accepted that the minor will comply with the school regulations as stipulated in the Code of Conduct.

As far as the respondents are concerned, they were simply enforcing what the parties had agreed to.

The respondents denied that the minor has been discriminated against on religious ground or at all. All the respondents wanted is for the minor to adhere to school regulations which the applicant had agreed to.

For easy of reference, the sections relied upon in this application state as follows:

“56 Equality and Non-discrimination

(1) All persons are equal before the law and have the right to equal protection and benefit of the law.

(2)…,.

(3) Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock.

(4) A person is treated in a discriminatory manner for the purpose of subsection (3) if —

(a) They are subjected, directly or indirectly, to a condition, restriction or disability to which other people are not subjected; or

(b) Other people are accorded, directly or indirectly, a privilege or advantage which they are not accorded.

(5) Discrimination on any of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair, reasonable, and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.

(6)…,.”

“60 Freedom of Conscience

(1) Every person has the right to freedom of conscience, which includes —

(a) Freedom of thought, opinion, religion or belief; and

(b) Freedom to practise and propagate and give expression to their thought, opinion, religion or belief, whether in public or in private and whether alone or together with others.

(2) No person may be compelled to take an oath that is contrary to their religion or belief or to take an oath in a manner that is contrary to their religion or belief.

(3) Parents and guardians of minor children have the right to determine, in accordance with their beliefs, the moral and religious upbringing of their children, provided they do not prejudice the rights to which their children are entitled under this Constitution, including their rights to education, health, safety and welfare.

(4) Any religious community may establish institutions where religious instruction may be given, even if the institution receives a subsidy or other financial assistance from the State.”

“75 Right to Education

“(1) The fundamental rights and freedoms set out in this Chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons.

(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including —

(a) The nature of the right or freedom concerned;

(b) The purpose of the limitation, in particular, whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;

(c) The nature and extent of the limitation;

(d) The need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others;

(e) The relationship between the limitation and its purpose, in particular, whether it imposes greater restrictions on the right or freedom concerned than are necessary to achieve its purpose; and

(f) Whether there are any less restrictive means of achieving the purpose of the limitation.

(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them —

(a) The right to life, except to the extent specified in section 48;

(b) The right to human dignity;

(c) The right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment;

(d) The right not to be placed in slavery or servitude;

(e) The right to a fair trial;

(f) The right to obtain an order of habeas corpus as provided in section 50(7)(a).”…,.

It is apparent that none of the rights that the applicant alleged would be infringed by the conduct of the respondents falls into the category of inviolable rights enumerated in subsection (3) of section 86 of the Constitution.

Accordingly, in the event that the applicant establishes that the conduct would violate any of the rights, it will be necessary to measure such prima facie violation as against the rights and freedoms of others, in terms of subsection (1), and within the context of the permissible derogations contemplated in subsection (2).

Counsel for both parties referred to the case of Makani & Others v Arundel School & Others 2016 (2) ZLR 157 (S) wherein the above rights were extensively discussed.

In that case, the applicants sought several declarations and consequential relief in respect of alleged violations of their children's constitutional rights.

The applicants had enrolled their children at Arundel School. In enrolling them they agreed that the children will abide by the school's Regulations. The school, being an Anglican school, had its requirements for inculcating value systems in the children. The Regulations were amended making it compulsory for all students to attend chapel prayers in order to reinforce collegiality.

The applicants and their children were practicing Jehovah's Witnesses. Their beliefs are not similar with other Christian denominations.

Upon application to the school for the admission of their children, each of the applicants completed a standard application form in which they indicated that they were Jehovah's Witnesses.

When compulsory chapel attendance was introduced and the children were being compelled to attend against their beliefs, the applicants wrote several letters to the school expressing their complaints. When the school insisted on the children attending Chapel, the applicants approached this court seeking an order for the children to continue attending school without being compelled to attend Chapel pending the determination of their application at the Constitutional Court.

The court considered issues that are also relevant in this matter.

In dealing with the right to education, as enunciated in section 75 of the Constitution, the court alluded to the fact that subsections (1) and (4) thereof pertain to right to education funded and availed by the State. As regards private schools, at page 165H-166B, the court aptly stated that:

“Subsections (2) and (3) of section 75 deal separately with private or independent educational institutions. They permit the establishment of such institutions, subject to such State supervision and control as may be necessary to ensure that they meet prescribed reasonable standards.

The right to establish and maintain an independent institution, guaranteed by subsection (2), must be construed not only in the physical and structural sense but to include as well the establishment and maintenance of educational and ethical standards.

Conversely, the provision does not envisage any right to flout the rules and regulations designed by the institution to safeguard its educational and ethical standards. The only qualification to the rights of an independent institution is that it must not discriminate on any ground prohibited by the Constitution….,.”

What this entails is that a private school is entitled to lay down rules and regulations for the admission of pupils espousing its objectives and ethos as long as those Regulations do not discriminate on any of the grounds prohibited in the Constitution.

In casu, the first respondent is a private/independent educational institution.

In opening its doors to learners, it set its objectives and ethos as stated in its Regulations, including the Code of Conduct. Thus, any learner seeking admission was made aware of the institution's Regulations and had to agree to abide by those Regulations as a pre-condition for admission.

The Code of Conduct was designed to espouse the institution's objectives and ethos thus giving it a unique identity. The Code of Conduct applied to all the learners alike and did not discriminate on any ground. The school, in effect, expected every pupil to maintain the 'St. Johns College' educational and ethical standards as espoused in the Code of Conduct.

Ex- facie, the Code of Conduct does not contravene section 56 of the Constitution as it requires all pupils to abide by the same Regulations in equal measure.

In dealing with a similar provision that required all pupils to attend chapel, PATEL JCC, in Makani & Others v Arundel School & Others 2016 (2) ZLR 157 (S)…, stated that:

“Given that this contractually agreed stipulation is intended to apply to all pupils without distinction, I do not think that it is necessarily discriminatory on the grounds of religion. Every parent who agrees to this condition does so willingly and actively chooses to abide by it implications. Thus, as I have stated earlier, in relation to the right to education, it cannot be said that this mutually agreed condition per se amounts to discriminatory treatment at the point of admission to the school.”

As noted in section 56(4) of the Constitution, what constitutes discrimination would be differentiation in treatment of the pupils.

In casu, the requirement to be cleanly shaven applied to all the pupils and the respondents enforcement of this Regulation was the same in respect of all the pupils.

In their opposition to this application, the respondents have insisted that the applicant's child be treated the same as other pupils. Any differentiation in treatment would bring disharmony within the body of students and would in fact amount to discrimination.

There was thus no discrimination in the way the respondents applied the Code of Conduct or as proscribed by the Constitution.

The other ground argued by the applicant's counsel was that the requirement for the minor to shave infringes on the minor's religious beliefs which is contrary to section 60 of the Constitution on freedom of conscience.

Whilst indeed the insistence on shaving is not in keeping with the minor's religious belief, such a condition was known to the applicant as he signed the contract for the minor's admission to the school.

It is the applicant who, in signing that contract without any reservations, compromised that minor's religious beliefs in order to gain from the educational and ethical standard enjoyed at the first respondent.

The minor can still exercise his freedom of conscience without hindrance as long as he abides by the contractual obligations the applicant accepted in enrolling him at the first respondent.

It is for the applicant and the minor to conform to their contractual obligations and not for the first respondent to be forced to conform to the applicant's beliefs now that the minor is studying to be an Imam.

The applicant must respect the first respondent's rights and interests as an independent institution.

Further, as was held in Makani & Others v Arundel School & Others 2016 (2) ZLR 157 (S)…,:

“The freedom of religion is not inviolable and may be limited in order to respect the rights and freedoms of other persons within the contemplation of section 86(1) of the Constitution of Zimbabwe 2013…,.”

The limitation may be where a person has voluntarily renounced their religious beliefs or if it is reasonable and justifiable in a democratic society.

Freedom of religion must also be exercised reasonably and with regard to the rights of others. As aptly noted by PATEL JCC in Makani & Others v Arundel School & Others 2016 (2) ZLR 157 (S)…,:

“The provision that I deem most apposite to the resolution of this matter, and which I now turn to consider, is section 86(1) of the Constitution. It declares that 'fundamental rights and freedoms…, must be exercised reasonably and with due regard for the rights and freedoms of other persons.'

The analysis of conflicting rights postulated by section 86(1) calls for an essentially unitary approach.

The question whether a given right is being exercised reasonably is inextricably intertwined with the question whether it is being exercised with due regard for the rights and freedoms of others. What is required is the balancing of actually or potentially antagonistic rights, having regard to the nature of those rights, the manner in and the extent to which they impinge upon one another, and the circumstances in which they have been or are to be exercised.”

In casu, on admission of the minor, the applicant agreed to abide by the Regulations of the school - including the Code of Conduct.

The first respondent, as party to that contract, expected the applicant to comply.

The school, as a private educational institution, has a right to the observance of its institutional objectives and ethos. As long as those objectives and ethos do not discriminate on any ground stated in the Constitution, the first respondent is justified in insisting on the observance of its Regulations.

The principle of mutual respect and tolerance requires that the applicant accommodate the institutional rights and interests of the school in pursuing its perceived objectives, so long as those objectives are not pursued unreasonably, and, equally importantly, so long as they do not radically undermine the religious beliefs and convictions of any of its pupils.

To expect the school to forego its objectives and ethos to accommodate those of its pupils would lead to some form of loss of identity as espoused from the institutions objectives and ethos.

One can imagine a situation where pupils with varying antagonistic or conflicting religious beliefs each wanting to practice their beliefs at the expense of the institutional objectives and ethos. This would make a mockery of the contract the parents of the pupils would have entered to abide by the school Regulations in order to maintain the private school's objectives and ethos.

I am of the view, that, as long as those Regulations do not contravene Constitutional provisions, parties must respect the sanctity of their contract.

Whilst being cognisant of the importance of education and the fact that the minor in question is supposed to enrol for his sixth form, it is my view, that, the predicament he finds himself in could have been avoided by seeking a school whose Regulations permitted or had no issue with the growing of facial hair.

In light of the above, the issue of the nature of relief sought would not make any difference.

Even if the application had been for a declaration against the provisions in the Code of Conduct, that would not have succeeded as I am of the view, that, it is for the pupil to conform to school Regulations and not school Regulations to conform to individual pupils beliefs and standards no matter how dearly one holds to such beliefs.

The respondent asked for costs on the higher scale.

The issue for determination involved the rights of a minor. It is the minor who has been excluded from school because he has grown a beard which he wishes to grow as he is studying towards being an Imam.

I do not perceive any mala fide to warrant costs on a higher scale.

The school had, on past occasions, granted some pupils exemption, so, the applicant may have thought it reasonable to insist on such as well. In any case, as the case involved a minor child's rights even an award of costs may not be justified.

The need to pronounce on the minor's rights in this regard was necessary and this should act as a guide to parents and guardians alike to enrol children at institutions that accord with their religious beliefs. Where this is not feasible, then, obtain written exemption from certain rules or regulations at the time of enrolment as part of the contract.

Accordingly, the application be and is hereby dismissed with no order as to costs.

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

IntroductionThis judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.Both ...

Introduction

This judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.

Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.

Both applications are opposed by some of the respondents.

Opposing papers, answering affidavits, and heads of argument were filed following a case management meeting with the parties representatives at which the dates for filing the papers were set by consent.

In case no. HC2128/21 the applicant, a legal practitioner and director of the Zimbabwe Human Rights NGO Forum, cited the Minister of Justice, Legal and Parliamentary Affairs, and all the judges of the Constitutional Court and Supreme Court as well as some of the judges of the High Court, on the basis that they are acting judges of the Supreme Court or have been called upon to act as such.

The judges were cited in official capacities.

The Judicial Service Commission (JSC) was joined in the proceedings, at its instance, at the case management conference.

In HC2166/21 the respondents cited are the Judicial Service Commission (JSC), the Chief Justice of Zimbabwe, Honourable Luke Malaba N.O. and the Attorney General N.O. The applicants in that case are Young Lawyers Association of Zimbabwe and Frederick Charles Moses Mutanda, a liberation war veteran.

Background

On 7 May 2021, the Constitution of Zimbabwe Amendment (No.2) Act 2021 became law after being assented to by the President. The contentious aspects of the Amendment Act which are the subject of the instant applications are found in its section 13.

That section repealed section 186 of the Constitution 2013 and substituted it with a new section 186.

Upon gathering that section 186 of the Constitution, introduced by the Amendment, would apply to the second to eighteenth respondents (Luke Malaba, Elizabeth Gwaunza, Paddington Garwe, Rita Makarau, Anne-Mary Gowora, Ben Hlatshwayo, Bharat Patel, Antonia Guvava, Susan Mavangira, Chinembiri Energy Bhunu, Tendai Uchena, Nicholas Mathonsi, Charles Hungwe, Felistus Chatukuta, Alfas Chitakunye, Samuel Kudya and Lavender Makoni) the applicants instituted the two applications. The applicant in Case No. HC2128/21 seeks the following relief:

“IT IS DECLARED THAT:

1. In accordance with provisions of sections 186(1)(a) and 186(2) (of the Constitution of Zimbabwe 2013) in their original form and notwithstanding provisions of Constitutional Amendment Number 2, second to eighteenth respondents hold office they reach the age of seventy years, whereupon they must, by operation of law, retire.

2.The attempt to subvert the position encapsulated in the "original" section 186(1)(a) and 186(2) of the Constitution of Zimbabwe 2013 is contrary to law and therefore in breach of applicant's right to the protection of the law as set out in section 56(1) of the Constitution of Zimbabwe 2013.

IT IS CONSEQUENTLY ORDERED THAT:

3. LUKE MALABA, must or did, at midnight on 15 May 2021, cease to hold the office of CHIEF JUSTICE OF ZIMBABWE.

4. Any action, conduct, or deed of LUKE MALABA post the 15th of May 2021, purportedly as CHIEF JUSTICE OF ZIMBABWE, is null and void and of no effect.

5. ln accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, ELIZABETH GWAUNZA became/becomes the ACTING CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive CHIEF JUSTICE OF ZIMBABWE is appointed.

6. In accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, PADDINGTON GARWE became/becomes the ACTING DEPUTY CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive DEPUTY CHIEF JUSTICE OF ZIMBABWE is appointed.

7.There shall be no order as to costs."

During argument, counsel for the applicant abandoned the relief sought in paragraph 6 of the draft order and moved that the draft be amended accordingly.

We point out, that, notwithstanding the statement suggesting that what is being sought in paragraphs 3-7 of the draft order is consequential relief, the relief is clearly in the form of a declaration.

The second to eighteenth respondents did not file opposing papers.

They will therefore be taken not to have opposed the application: see Prosser & 35 Others v Ziscosteel Company Ltd HH201-93 and Panganai and 20 Others v Kadir & Sons (Pvt) Ltd HH26-95.

We do not accept the submission by their counsel that they oppose the application without filing opposing papers. This is because the directions issued on 12 May 2021 required the respondents to file opposing papers if they were opposing the application. Their grounds of opposition would have to be contained in the opposing affidavits.

ln Case No. HC2166/21 the applicant sought declaratory relief as follows:

“IT IS DECLARED THAT:

1. The first respondent (Judicial Service Commission) in failing to activate the provisions of section 180 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 and/or the provisions of section 180 of the Constitution of Zimbabwe as amended by Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) diligently and without delay violated section 324 of the Constitution of Zimbabwe as amended.

2. The second respondent (Chief Justice Luke Malaba) cannot, by virtue of section 328(7) of the Constitution of Zimbabwe, as amended, benefit from the term limit extension as introduced by an amendment of section 186 by the Constitution of Zimbabwe Amendment (No.2) Act 2021.

3. As a consequence of 2 above, the second respondent shall vacate office as the Chief Justice of Zimbabwe on (sic) midnight of 15 May 2021.

4. Any action, conduct, act, or deed of second respondent post the 15th of May 2021, purportedly as Chief Justice of Zimbabwe, is null and void and of no force or effect.

5. Any attempt to continue in office by second Respondent as Chief Justice of Zimbabwe and/or any continuation in office by second respondent, purportedly as Chief Justice of Zimbabwe, violates applicants right of access to a court of law established by law and applicants right to protection of the law in accordance with section 69(4) and section 56(1) of the Constitution 2013 as amended.

6. The second respondent, in any event, can no longer be a judge of the Constitutional Court for more than 15 years in violation of section 186(1) of the Constitution 2013 as amended.

7. ln the alternative, section 14 of the Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) is invalid for violating section 56(3) of the Constitution 2013 and is accordingly struck down.

8. There shall be no order as to costs."

The relief set out in the first paragraph was not persisted with as it was predicated upon a misreading of the Constitutional provisions pertaining to the appointment of a Chief Justice in Zimbabwe.

The applicants were under the mistaken belief that the first respondent, the Judicial Service Commission (JSC) had the mandate to call for candidates to participate in an interview.

Section 180 of the Constitution provides that the Chief Justice is appointed by the President after consultation with the Judicial Service Commission (JSC).

The relief sought in paragraphs 2, 3, 4 and 5 is the same one being sought by the applicant in HC2128/21 save for the reference to section 69(4) of the Constitution.

The relief sought in paragraph 6 of the draft order was abandoned during argument. Also, the applicant did not make any submissions in support of the alternative relief being sought in paragraph 7 of the draft order.

We take it that this relief, seeking the declaration of invalidity in respect of section 13 (which was incorrectly referred to as section 14) of the Constitution of Zimbabwe Amendment (No.2) Act 2021, is not being persisted with....,.

The Dispute on the Merits

This dispute stands to be resolved on the effect of section 186 of the Constitution of Zimbabwe as introduced by the Constitution of Zimbabwe Amendment (No.2) Act 2021 in light of the provisions of section 328 of the Constitution 2013.

The new section 186 of the Constitution provides -

“186 Tenure of Office of Judges

(1) The Chief Justice and the Deputy Chief Justice hold office from the date of their assumption of office until they reach the age of 70 years, when they must retire, unless, before they attain that age, they elect to continue in office for an additional 5 years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(2) Judges of the Constitutional Court are appointed for a non-renewable term of not more than 15 years, but —

(a) They must retire earlier if they reach the age of 70 years, unless, before they attain that age, they elect to continue in office for an additional 5 years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to the mental and physical fitness of the judge so to continue in office;

(b) After the completion of their term, they may be appointed as judges of the Supreme Court or the High Court, at their option, if they are eligible for such appointment.

(3) Judges of the Supreme Court hold office from the date of their assumption of office until they reach the age of 70 years, when they must retire, unless, before they attain that age, they elect to continue in office for an additional 5 years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to the mental and physical fitness of the judge so to continue in office.

(4) Notwithstanding subsection (7) of section 328, the provisions of subsections (1), (2) and (3) of this section shall apply to the continuation in office of the Chief Justice, Deputy Chief Justice, judges of the Constitutional Court and judges of the Supreme Court.

(5) Judges of the High Court, and any other judges, hold office from the date of their assumption of office until they reach the age of 70 years, when they must retire.

(6) A person may be appointed as a judge of the Supreme Court, the High Court, or any other court, for a fixed term, but, if a person is so appointed, other than in an acting capacity, he or she ceases to be a judge on reaching the age of 75 years (in the case of a judge of the Supreme Court) or 70 years (in the case of a judge of the High Court or any other court) even if the term of his or her appointment has not expired.

(7) Even though a judge has resigned or reached the age of retirement, or, in the case of a judge of the Constitutional Court, reached the end of his or her term of office, he or she may continue to sit as a judge for the purpose of dealing with any proceedings commenced before him or her while he or she was a judge.

(8) A judge may resign from his or her office at any time by written notice to the President given through the Judicial Service Commission.

(9) The office of a judge must not be abolished during his or her tenure of office.”

Its effect is to extend the retirement age of the Chief Justice, Deputy Chief Justice, and judges of the Constitutional and Supreme Court as will be dealt with in due course.

Section 328 of the Constitution 2013 reads as follows:

“(1) In this section —

'Constitutional Bill' means a Bill that seeks to amend this Constitution;

'Term-limit provision' means a provision of this Constitution which limits the length of time that a person may hold or occupy a public office.

(2) An Act of Parliament that amends this Constitution must do so in express terms.

(3) A Constitutional Bill may not be presented in the Senate or the National Assembly in terms of section 131 unless the Speaker has given at least 90 days notice in the Gazette of the precise terms of the Bill.

(4) Immediately after the Speaker has given notice of a Constitutional Bill, in terms of subsection (3), Parliament must invite members of the public to express their views on the proposed Bill in public meetings, and through written submissions, and must convene meetings and provide facilities to enable the public to do so.

(5) A Constitutional Bill must be passed, at its last reading in the National Assembly and the Senate, by the affirmative votes of two thirds of the membership of each House.

(6) Where a Constitutional Bill seeks to amend any provision of Chapter 4 or Chapter 16 —

(a) Within 3 months after it has been passed by the National Assembly and the Senate in accordance with subsection (5), it must be submitted to a national referendum; and

(b) If it is approved by a majority of the voters voting at the referendum, the Speaker of the National Assembly must cause it to be submitted without delay to the President, who must assent to and sign it forthwith.

(7) Notwithstanding any other provision of this section, an amendment to a term-limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.

(8) Subsections (6) and (7) must not both be amended in the same Constitutional Bill nor may amendments to both those subsections be put to the people in the same referendum.

(9) This section may be amended only by following the procedures set out in subsections (3), (4), (5) and (6) as if this section were contained in Chapter 4.

(10) When a Constitutional Bill is presented to the President for assent and signature, it must be accompanied by —

(a) A certificate from the Speaker, that, at its final vote in the National Assembly, the Bill received the affirmative votes of at least two-thirds of the membership of the Assembly; and

(b) A certificate from the President of the Senate, that, at its final vote in the Senate, the Bill received the affirmative votes of at least two thirds of the membership of the Senate.”

We draw particular attention to the provisions of section 328(7) of the Constitution because this matter revolves around its relationship with section 186 of the Constitution, and the effect of that relationship on the tenure of office of the Honourable Justice Luke Malaba and the other judges who are cited as respondents in Case No. HC2128/21.

The Applicants and Respondents Contentions

The applicants case is summarized in paragraphs 61-65 of the founding affidavit in HC2128/21 and paragraphs 17-21 of the founding affidavit in HC2166/21.

It is that the second respondent and the other persons cited who occupy the offices of judges of the Constitutional Court and Supreme Court cannot remain in office beyond the age of 70 years notwithstanding the provisions of section 186 of the Constitution as substituted by the Constitution of Zimbabwe Amendment (No.2) Act 2021.

The essence of the respondents case is that section 186 of the Constitution did not affect the term-limit or tenure of the judges of the Constitutional and Supreme Courts, and is therefore not affected by the provisions of section 328(7) of the Constitution.

ln other words, what has to be decided in casu is whether the 2nd to 18th respondents retire upon reaching the age of 70 years or are entitled to elect to continue in office for an additional five years until they reach the age of 75 years.

This issue can only be resolved by interpretation of sections 186 and 328(7) of the Constitution.

It is important to give an overview of the principles of interpretation which apply to constitutional provisions in general insofar as these have a bearing on how these two sections should be understood.

The Approach to Constitutional Interpretation

According to IAIN CURRIE & JOHAN de WAAL 'The Bill of Rights Handbook' 6th ed…., "Constitutional interpretation is the process of determining the meaning of a constitutional provision."

Thus, interpreting a Constitution entails giving "meaning" which we understand in its wide sense, to the provisions of a Constitution. An interpretation that does not give effect to the purpose of the provision does not give meaning to it; see Judicial Service Commission v Zibani & Others SC68-17; 2017 (2) ZLR 114.

The textual provisions of the Constitution under consideration are the starting point, but, they should not be considered and interpreted piecemeal or in isolation.

We therefore do not agree with the submission by counsel for the first respondent, that, the cases of Natal Joint Municipal Pension Fund v Enduhreni Municipality 2012 (4) SA 593 and Zambezi Gas (Pvt) Ltd v NR Barber (Pvt) Ltd & Anor SC03-20 introduce a new and different paradigm to the interpretation of Constitutional provisions.

The textual provisions must be construed contextually having regard to the Constitution as a whole; see Matatiele Municipality v President of the Republic of South Africa 2007 (6) SA 477.

The preferred approach is the 'generous' and 'purposive' interpretation that gives expression to the underlying values of the Constitution, as was held in S v Makwanyane 1995 (3) SA 391.

Section 46(1) of the Constitution 2013 provides as follows:

“(1) When interpreting this Chapter (read 'Constitution'), a court, tribunal, forum, or body —

(a) Must give full effect to the rights and freedoms enshrined in this Chapter;

(b) Must promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom, and, in particular, the values and principles set out in section three;

(c) Must take into account international law and all treaties and conventions to which Zimbabwe is a party;

(d) Must pay due regard to all the provisions of this Constitution, in particular, the principles and objectives set out in Chapter 2; and

(e) May consider relevant foreign law;”

The starting point is to appreciate, that, in Zimbabwe, the Constitution is the supreme law. This fundamental tenet of democracy is enshrined as a rule and as one of the values and principles upon which the nation of Zimbabwe is founded.

Section 2 of the Constitution 2013 provides as follows:

“2. Supremacy of Constitution

(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom, or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions and agencies of Government at every level, and must be fulfilled by them.”

Section 3 of the Constitution 2013 states the following, among other things:

“3. Founding Values and Principles

(1) Zimbabwe is founded on respect for the following values and principles —

(a) Supremacy of the Constitution;

(b) The rule of law;

(c) Fundamental human rights and freedoms;

(d)…,.;

(e)…,.;

(f)….,.;

(g)…,.;

(h) Good governance;

(i)…,.;

(2) The principles of good governance, which bind the State and all institutions and agencies of government at every level, include -

(a)…,.;

(b)…,.;

(c)…,.;

(d)…,.;

(e) Observance of the principle of separation of powers;

(f) Respect for the people of Zimbabwe, from whom the authority to govern is derived;

(g) Transparency, justice, accountability and responsiveness;

(h)…,.;”

See also section 331 of the Constitution 2013, which provides as follows:

“Section 46 applies, with any necessary changes, to the interpretation of this Constitution apart from Chapter 4.”

The essence of the constitutional supremacy doctrine, as distinct from parliamentary sovereignty, is that the Constitution is the litmus test, the ultimate measure, by which the validity of any law, practice, custom or conduct is assessed.

This aspect distinguishes constitutional supremacy from parliamentary supremacy or parliamentary sovereignty. Where the latter system obtains, Parliament is supreme, and, any law that it passes cannot have its content questioned for validity.

Zimbabwe is a constitutional democracy in which the Constitution is supreme, and not a parliamentary democracy in which Parliament is supreme; see Judicial Service Commission v Zibani & Others SC68-17; 2017 (2) ZLR 114.

The principle of separation of powers, which is explicitly provided for in section 3 of the Constitution, and guaranteed by the architecture of our Constitution, has in it, that, among the three arms of the State, the judiciary has the primary duty to interpret the law; see In Re: Prosecutor-General of Zimbabwe on his Constitutional lndependence and Protection from Direction and Control CC13- 17; 17 (1) ZLR 107.

Therefore, the exercise of determining what section 186 of the Constitution means in light of the provisions of section 328(7) of the Constitution falls squarely within the mandate of the courts.

The principles which are encapsulated in the principle of good governance demand a new and different way of doing things from what may have been done in the past, hence the special mention of transparency, justice, accountability and responsiveness.

This is the context in which the entrenchment of section 328(7) of the Constitution must be understood.

The provision's purpose is, among the other important considerations, to ensure, that, a person who holds or occupies public office does so for a limited time, to prevent turning persons into institutions thereby compromising on the precepts enjoined in section 3 of the Constitution.

It is also to ensure that a person who occupies or holds public office does not influence changes in the law in order to entrench his or her occupation of the public office by extending the length of time that he or she remains in that office.

With particular reference to judicial officers, entrenchment of provisions relating to terms of office for incumbents ensures confidence in the judiciary by dispelling any suspicion that favours are being extended to them, contrary to the provisions of the Constitution, that would undermine the independence of the judiciary.

As was held in the case of Justice Alliance of South Africa v President of the Republic of South Africa & Others: Freedom Under Law v President of the Republic of South Africa and Others; Centre for Applied Legal Studies and Another v President of the Republic of South Africa and Others 2011 (5) SA 388:

"ln approaching this question, it must be borne in mind, that, the extension of a term of office, particularly one conferred by the Executive or Parliament, may be seen as a benefit. The judge or judges upon whom the benefit is conferred may be seen as favoured by it….,. The power of extension, in section 176(1), must, therefore, on general principle, be construed so far as is possible to minimize the risk that its conferral could be seen as impairing the precious won institutional attribute of impartiality and the public confidence that goes with it."

Public confidence in the independence of the judiciary would be severely undermined if there was a belief, or even suspicion, that the judiciary, or members thereof, are, like nocturnal spooks acting under cover of darkness, knocking on the doors of the Executive and Legislative arms of Government begging or lobbying for extension of their terms of office.

This is the reason why there is need for certainty regarding the tenure of office of judicial officers in order to dispel any thinking that if they behave in a certain way they might get the benefit of favourable constitutional amendments.

In order to guard against subtraction from the founding values and principles, including the independence of the judiciary, the court must embrace substantive reasoning, an interpretive model which gives substance to those values and principles, and eschew legal sophistry which would result in narrowing down the meaning of these values.

Further, the entrenchment ensures, that, if there is any change in the Constitution, the effect of which is to extend the length of time that a person may hold or occupy public office, such a change in the in law must be subjected to the rigorous processes in section 328 of the Constitution - which include a referendum.

We point out, that, section 328 of the Constitution does not stop the legislature from amending the Constitution by extending term limits in general.

If the changes in the Constitution do not have the effect of extending the length of time that the incumbent may hold office, they do not have to go through the rigorous processes required by section 328 of the Constitution. However, if the effect of such amendments is to extend the length of time that a person holds or occupies public office, then, they must be subjected to those entrenched processes.

Section 328 of the Constitution has not been repealed by the Constitutional Amendment. It must therefore be given effect.

Interpretation of Section 186 and 328(7) of the Constitution

It is an established principle that sections of the Constitution must not be read in isolation but must be read together, and in the context of the whole text, in order to give effect to the purpose and objective of the Constitution: see Tsvangirai M v Mugabe R, Z.E.C. & 2 ORS CC20-17; (2) ZLR 1 (CC) per MALABA DCJ…,.

In this case, the two sections are not in conflict, but, must be read together and with the Constitution as a whole.

Section 328 of the Constitution, which deals with amendment of the Constitution, entrenches certain provisions. This entrenchment is by requiring, in addition to the usual procedure for passing an amendment to the Constitution, that, such amendments be submitted to a referendum and get approval from a majority of the voters voting at the referendum.

One such provision which is entrenched is section 328(7) of the Constitution, which, as recited above, provides that:

“(7) Notwithstanding any other provision of this section, an amendment to a term limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”

The Constitution of Zimbabwe Amendment (No.2) Act 2021 amends section 186 of the Constitution through its section 13.

Section 332 of the Constitution 2013 defines the term 'amend' to include "vary, alter, modify, add to, delete or adapt."

In this instance, the existing section 186 of the Constitution was repealed and substituted with a new section 186.

This is an amendment.

In order to determine whether or not the amendment is one that falls within the ambit of section 328(7) of the Constitution, two requirements must be satisfied, namely –

(a) It must be an amendment to a term-limit; and

(b) It must have the effect of extending the length of time that a person may hold or occupy a public office.

'Effect' simply means result, consequence, or impact - irrespective of the expressed purpose of the amendment.

Once it satisfies these two requirements, then, such an amendment is excluded from applying to "any person who held or occupied that office, or an equivalent office, at any time before the amendment."

The reference to an 'equivalent office' is no doubt meant to deal with a situation where an amendment might seek to rename or reconfigure what is essentially the same office in order to escape the consequences of section 328(7) of the Constitution, thereby extending a person's stay in office.

There can be no question that judges occupy public office.

There was debate as to whether section 186 of the Constitution is a term limit provision which has the effect of extending the length of time that the second respondent, and the other judges of the Constitutional Court and Supreme Court, may hold or occupy office.

The respondents contended that it was not a term-limit provision.

The submission was that the only term limit which is contained in section 186 of the Constitution is one that is contained in subsection (2), which states that:

"Judges of the Constitutional Court are appointed for a non-renewable term of no more than fifteen years."

Their argument was that the retirement age stipulated does not limit the term of office of the judges. This argument means that judges of the Supreme Court and High Court have no term limit.

That argument is not sustainable.

Section 328(1) of the Constitution 2013 defines 'term-limit provision' to mean "a provision of this Constitution which limits the length of time that a person may hold or occupy a public office."

We therefore come to the conclusion, that, section 186 of the Constitution is a term limit provision and that it has the effect of extending the length of time that a person may hold the office of judge of the Constitutional Court and Supreme Court.

It increases the retirement age of the judges of these courts from the original 70 to 75 years.

The fact that this extension of the tenure of office is subject to election by the concerned judge, and acceptance by the President, after consultation with the Judicial Service Commission, and production of a medical report, does not change its nature as an extension of a term limit.

In respect of the judge of the Constitutional Court, the term limit is based on two dimensions, namely;

(i) The period of 15 years which is provided in section 186 of the Constitution; and

(ii) The age of the affected judge.

It is clear that whichever of these two (2) occurs first terminates the tenure of the judge. This is what is generally referred to as a hybrid tenure arrangement.

There are thus three types of valid tenure arrangements in use, generally, the world over:

(i) Life limits (when one dies);

(ii) Age limits (when one reaches a specified retirement age); and

(iii) Fixed term Iimits (when a specified period of service is reached).

These three tenure arrangements are contained in section 186 of the Constitution of Zimbabwe. Tenure has to do with term of office; term of office has to do with time. Both fixed term (fixed time), and age-based term (age-based time), have to do with time. Time is the underlying factor in both of them.

Therefore, the inescapable conclusion is that varying retirement age is varying term limits.

ln respect of Supreme Court judges, the tenure of office is defined by age only. Thus, for instance, a Constitutional Court judge who is aged 70 years at the time of his or her appointment has his or her term limited to only five years. That term limit is defined by his or her age. He or she must retire upon turning seventy-five years after serving for only five years. On the other hand, a judge of the same court who is fifty years old at the time of his or her appointment has his or her term defined by the period of fifteen years. The judge retires from the Constitutional Court at the age of sixty-five years.

On the other hand, a judge of the Supreme Court, under the new amendment, retires at the age of seventy-five years irrespective of how many years he has served on that Bench.

That section 186 of the Constitution is a term limit provision, and that it is concerned with extending the length of time that judges of the Constitutional Court and the Supreme Court hold or occupy public office, is also evident from the provisions of section 186(4) of the Constitution. This provision explicitly refers to section 328(7) of the Constitution. This reference to section 328(7) would be rendered superfluous or nugatory if, as suggested by the respondents, it is found that section 186 is not a term-limit provision.

The respondents have not suggested why the legislature would engage in a superfluous exercise, especially in light of the presumption against superfluity in the interpretation of statutes.

Also, in the affidavits filed in this court, the respondents referred to its effect as extending the term of office.

See paragraphs 25.4(b) and (c) of the 19th respondent's opposing affidavit in HC2128/21.

The submission made on behalf of the respondents reads the reference to the fifteen years in isolation from the rest of subsection (2) of section 186 of the Constitution.

That is the approach to interpretation which must be discarded.

The case Justice Alliance of South Africa v President of the Republic of South Africa & Others: Freedom Under Law v President of the Republic of South Africa and Others; Centre for Applied Legal Studies and Another v President of the Republic of South Africa and Others 2011 (5) SA 388 which has been referred to by both the applicants and respondents also confirms that age can, and does, indeed define and can be used to extend a term of office, as has happened following the enactment of section 186 of the Constitution:

"lt follows, that, in exercising the power to extend the term of office of a Constitutional Court Judge, Parliament may not single out the Chief Justice…,. Age is an indifferent criterion that may be applied in extending the term of office of a Constitutional Court Judge.”…,.

Section 186(4) and section 328(7) of the Constitution can be read together.

In our conclusion, section 186(4) of the Constitution does not apply to the person of the second respondent and the other persons who were judges of the Constitutional Court prior to the amendment. It also does not apply to the persons who were judges of the Supreme Court. This is because these are persons who fall within the ambit of section 328(7) of the Constitution in that they held or occupied the public office prior to and at the time of the amendment of the Constitution.

Consistent with the hallowed principle of interpretation which avoids an interpretation which results in a conflict in constitutional provisions, we come to the conclusion, that, section 186(4) of the Constitution does not apply to the judges of the Constitutional Court and Supreme Court who held office before the amendment.

There is no confusion which results from the wording of section 186(4) of the Constitution.

It says that the section shall apply to the continuation in office of the Chief Justice, Deputy Chief Justice, judges of the Constitutional Court and judges of the Supreme Court. This means it would apply to the continuation of the mentioned public officer other than those who were judges before the amendment.

The provision mentions offices rather than the persons occupying them; section 186(4) of the Constitution must therefore be understood as applicable to persons who are appointed to the named offices subsequent to the amendment. It does not mention 'persons' and does not state that the persons who were in office prior to the amendment would benefit from it.

If it did so, this would put it in conflict with the express provisions of section 328(4) of the Constitution and its constitutionality would be in question given that it was not submitted to a national referendum.

On the other hand, an interpretation that excuses the persons who held public office as judges of the Constitutional and Supreme Courts, prior to the amendment, from the ambit of section 328(7) of the Constitution, would reduce the Constitution to a wooden iron, because any person who already holds or occupies public office can easily cause their term of office to be lengthened by enactment of a provision similar to section 186(4) of the Constitution thereby perpetuating the mischief which was meant to be addressed by the entrenchment of section 328 of the Constitution.

The Status of Honourable Justice Malaba

It is common cause that the Honourable Justice Malaba is the only judge of the Constitutional Court who has turned 70. At the time that the applications were filed, he had not turned 70. He turned 70 years old on 15 May 2021.

The applications were filed following indications that he might or would benefit from the new section 186 of the Constitution by having his tenure of office extended by another 5 years.

The respondents, in their opposing affidavits, have referred to a letter dated 11th May 2021, by which his tenure was to be extended with effect from 16 May 2021.

In view of the conclusion we have reached, Honourable Justice Luke Malaba ceased to be a judge of the Constitutional Court and Supreme Court (at 0000 hours on 15 May 2021) when he turned 70 years. Equally, he ceased to be the Chief Justice of the Republic of Zimbabwe at that time.

Nothing tums on the letter of 11 May 2021; when it was written, that was the same day that the application was filed. The letter of 11 May 2021 was intended to take effect only on 16 May 2021, on which date the then incumbent would have ceased to be a judge some twenty-four hours earlier.

An absurd situation, which neither the Executive nor the Legislature would have intended, would have resulted whereby the country would be without a Chief Justice for the period of 24 hours, between 0000hours on 15 May 2021 and 0000 hours on 16 May 2021.

There would have been nothing to extend since he would have ceased to be a judge and Chief Justice of Zimbabwe.

Thus, any purported extension of the second respondent's occupation of the office of judge or Chief Justice remains a nullity because there was nothing to extend once he ceased to be a judge at the inception of 15 May 2021. This is so whether the extension is said to have been constituted by his election to remain in office or by the letter of 11 May 2021.

The celebrated statement in the case of MacFoy v United Africa Co. Ltd [1961] I AER 1169 decidedly seals the effect of that letter:

''If an act is void, then it is, in law, a nullity. It is not only bad, but incurably bad….,. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. lt will collapse."

ln the case of Muchakata v Netherburn Mine 1996 (1) ZLR 153 the Supreme Court of Zimbabwe (per KORSAH JA) said that if an act is void ab initio it is "void at all times and for all purposes. It does not matter when and by whom the issue of its validity is raised; nothing can depend on it."

In making these observations, we are mindful of the fact, that, the two applications were not based on the letter of 11 May 2021. That letter was produced in opposing papers.

Our conclusion is that the letter does not affect the conclusions which we have reached based upon an interpretation of the constitutional provisions considered above.

The Position of the other Judges of the Constitutional Court and Supreme Court

The effect of the conclusion reached above is that the persons who occupied the positions of judges of the Constitutional and Supreme Courts, prior to the amendment, cannot have their term in office extended beyond the age of 70 years based on section 186 of the Constitution as presently worded. This is because they held or occupied the concerned office before the amendment introduced by section 13 of the Constitution of Zimbabwe Amendment (No.2) Act 2021.

We point out, however, that, acting judges, be they in the Constitutional Court or Supreme Court, are not affected by the provisions of section 328(7) as read with section 186 of the Constitution 2013.

These include the 4th to 14th and the 18th respondents in so far as they have been acting Constitutional Court judges as well as the 15th, 16th and 17th respondents in case no. HC2128/21 in so far as they are substantive High Court judges who have been acting as Constitutional Court and/or Supreme Court judges.

There is no extension to the length of their term in office since they are just acting judges.

The Violations of the Applicants Rights

The applicants, in both applications, allege that the continued occupation of public office as judge and/or Chief Justice of Zimbabwe by the second respondent would violate their fundamental rights enshrined in section 56(1) and section 69(3) of the Constitution.

The parties accepted that the reference to section 69(4) in the draft order in HC2166/21 was an error, the correct and intended citation being section 69(3) of the Constitution.

Section 56(1) of the Constitution provides as follows:

"All persons are equal before the law and have the right to equal protection and benefit of the law."...,.

This court is concerned with substantive equality and equal protection and benefit of the law rather than formal equality.

In the case of Mawarire v Mugabe N.O. & Ors CC01-13, the applicant alleged violation of, inter alia, section 18(1) of the old Constitution which provided as follows:

"Subject to the provisions of this Constitution, every person is entitled to the protection of the law."

The Constitutional Court came to the conclusion, that, the failure to perform a constitutional duty violated the applicant's fundamental right as protected by section 18 of the Constitution.

Section 56(1) of the Constitution 2013 is wider in its scope than section 18 of the old Constitution. It qualifies the protection of the law with the word 'equal'; it also adds the entitlement to 'equal benefit' of the law which was not there in the old Constitution.

We conclude, that, the continued occupation by the second respondent of the offices of judge and Chief Justice, after he has turned seventy years old, violates the applicants right as enshrined in section 56(1) of the Constitution.

The applicants are entitled to protection and benefit of the law in the sense of having public office occupied in accordance with and not in violation of the provisions of the Constitution.

The applicants are therefore entitled to the declaratory relief which they seek.

View Appeal
HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAFUSIRE J

This judgment is given in default of appearance by the respondents. I am much concerned by the conduct of the officials from the office of the Attorney General, the second respondent herein.

This was an opposed application.

The respondents, through the Attorney-General, filed a notice of opposition. The record indicates, that, the notice of set down was served personally on one Talent Undenge, the law officer in the Attorney General's office who runs its civil division at Masvingo. But, on the day of hearing, not only was there no appearance by anyone from the Attorney General, but, also, there was not a word or any advice on what the respondents position was. Yet the relief sought by the applicant has far reaching consequences.

The relief sought by the applicant has far reaching consequences in that he wants a declaration of constitutional invalidity of section 93(5a) of the Labour Act [Chapter 28:01] and section 8(3) of the Labour (National Employment Code of Conduct) Regulations 2006, S.I.15 of 2006 (“the National Employment Code of Conduct”).

The applicant says that section 93(5a) of the Labour Act violates section 68(3) and section 69(2) of the Constitution; that, section 8(3) of the National Employment Code of Conduct violates the right to the protection of the law as guaranteed by section 56(1) of the Constitution and that both section 93(5a) of the Labour Act and section 8(3) of the National Employment Code of Conduct contravene section 134(b) of the Constitution.

As such, he wants his case referred to the Constitutional Court for final determination, allegedly in terms of section 167(3) of the Constitution.

In simple terms, section 93(5a) of the Labour Act, a recent amendment to the Labour Act (i.e. in 2015), empowers a labour officer to apply to the Labour Court for the enforcement of his or her determination against an employer.

Only the employer gets cited in such an application.

For that, the applicant says, the provision discriminates against employees, something contrary to section 68 and section 69 of the Constitution. These two provisions of the Constitution guarantee to every person the right to administrative justice and to a fair hearing.

As for section 8(3) of the National Employment Code of Conduct, the applicant wants it struck off on the ground that it contains a typographical error in that it refers to a non-existent provision. He says because of it, he became non-suited in his dispute against his employer. Yet, section 56(1) of the Constitution guarantees to everyone the right to equal treatment and protection before the law.

On the other hand, section 134(b) of the Constitution does not permit a statutory instrument (such as the National Employment Code of Conduct) to infringe or limit any of the rights and freedoms set out in the Declaration of Rights.

The Constitution is the supreme law of Zimbabwe. No other law can say something to the contrary and remain valid. The courts have the power and mandate to declare a statutory provision as being inconsistent with the Constitution. But, this function is not a light matter. It is not a power that is exercised arbitrarily. Laws are made by Parliament, a legislative body made up of two Houses. The men and women who sit in them take time to scrutinise, debate, and critique a law before it is passed. It is only in cases where the court is completely satisfied that a particular law is at war with the Constitution that it will strike it down.

In this case, with the respondents in default, I could have simply granted a default judgment and announced it ex tempore on the day of hearing. But, given what is at stake, I considered it prudent to reserve my decision and think through it properly, moreso as the applicant was not represented.

Even though it was evident someone with a glimpse of legal knowledge was advising and drafting the papers for the applicant behind the scenes, it was not that easy to quite grasp the factual matrix of the dispute and its trajectory from the moment it arose.

I ended up asking the applicant to file supplementary papers on what exactly had transpired, both at the workplace and in the labour “courts.”

The matter is an employment dispute. It has a chequered past.

The dispute erupted at the workplace. It bobbed there for a while. Eventually, it bounced into the chambers of the Labour Officer. From there, it escalated to the Labour Court. After that, it became a game of ping pong. The matter was thrown back to the labour office; back to the Labour Court; back to the labour office again; back to the Labour Court; back to the workplace; back to the labour office; back to the Labour Court; and, finally to the Supreme Court.

The superior court did not decide the matter. The applicant felt unstuck. He finally came to the High Court.

I heard the applicant on 27 August 2018. He tried his best. But, at the end, I was none the wiser. The employer was not cited as a party. As said already, the Attorney-General was in default. He and the first respondent had been barred anyway for failure to file heads of argument in accordance with Order 32 Rule 238(2) and (2a) of the Rules of this Court.

But, in a matter with such a rugged past, and given the nature of the relief sought, I could do with some properly reasoned arguments and a graceful presentation. Yet, the applicant is entitled to administrative justice in terms of section 68 of the Constitution.

Rule 238(2b) of the High Court Rules says, where a respondent fails to file heads of argument timeously he or she is barred. Thereafter, the court or judge may deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.

I opted to hear the matter on the merits.

The facts were these:

In the beginning, the applicant was an employee of a trade union, the Zimbabwe Educational Scientific, Social and Cultural Workers Union. He was a Regional Officer based at Masvingo. He was dismissed for misconduct. The dismissal followed a disciplinary process in terms of the National Employment Code of Conduct.

The applicant wanted to appeal the dismissal. He said he faced a dilemma. The dilemma stemmed from what he perceived to be a typographical error in the National Employment Code of Conduct.

Evidently, there is such an error in those Regulations.

Section 8 of the National Employment Code of Conduct governs appeals at, and from the workplace. It provides for internal appeal structures at the work-place in the form of an Appeals Officer or Appeals Committee, depending on the size of the establishment or work place. Such internal appeal structures should not exceed two appeal authorities.

In terms of section 8(3) of the National Employment Code of Conduct, a person aggrieved by a decision can appeal, in writing, and within seven working days, to the Appeals Officer or Appeals Committee.

There is a problem with this sub-section.

It is imprecise. It does not say whose decision is appealable to the Appeals Officer or Appeals Committee. It says it is a decision “…, made in terms of section (2)…,.”

But, section (2) does not exist.

The substantive section 2 is an interpretation provision. It has nothing to do with disciplinary proceedings. Disciplinary proceedings, such as would lead to the termination of employment, are governed by section 6 of the National Employment Code of Conduct. So, section 2 cannot be the provision section 8(3) of the National Employment Code of Conduct purports to refer to.

At any rate, it is a technique of legislative drafting not to use brackets for numerals representing substantive, standalone sections in statutes.

So, if the reference in section 8(3) of the National Employment Code of Conduct cannot be to a substantive section 2, one would assume it is meant to refer to section 8(2) of the National Employment Code of Conduct. But, again, that cannot be. Section 8(2) does not deal with disciplinary processes. It is the one that provides for the internal appeal structures that should not exceed two authorities.

The applicant says, faced with such a dilemma, he looked elsewhere. He discovered that section 8(6) of the National Employment Code of Conduct is another provision dealing with appeals. That provision says a person who is aggrieved by a decision or manner in which an appeal is handled by the employer or the Appeals Officer or Appeals Committee may refer the case to a Labour Officer or an Employment Council within seven days.

The applicant says he considered it was section 8(6) of the National Employment Code of Conduct that applied to his situation because section 8(3) referred to a non-existent provision.

At any rate, his employer had no appeal structures as envisaged by the National Employment Code of Conduct. He referred his case to the Labour Officer the same day that he received the dismissal penalty.

That was in March 2015.

In terms of section 8(7) of the National Employment Code of Conduct, a Labour Officer, to whom a matter is referred in terms of section 8(6), can dispose of it in one of several ways set out in section 93 of the Labour Act. Before this section was amended in 2015, these ways included conciliation or a reference to compulsory arbitration. The Labour Officer had thirty days to dispose of the matter. It was through the amendment in 2015 that the Labour Officer was now clothed with the power to approach the Labour Court as aforesaid.

After the applicant had referred his dispute, the Labour Officer, for one reason or other, did not dispose of it within the prescribed thirty days. Two months after the expiry of the thirty days, the applicant applied to the Labour Court, asking it to dispose of his appeal in terms of section 93(7) of the Labour Act.

That was in May 2015.

Section 93(7) of the Labour Act is the provision that allows any party to a dispute to approach the Labour Court to dispose of it where a Labour Officer has failed to settle it through conciliation and has issued a Certificate of No Settlement, or has, for any reason, refused to issue such a certificate.

The Labour Court, four months later, referred the matter back to the Labour Officer with instructions to appoint an arbitrator to dispose of the applicant's appeal.

That was in September 2015.

That did not happen, apparently for two reasons:

(i) Firstly, the first respondent was phasing out the system of external arbitrators. As such, the applicant was advised, that, no arbitrator could be appointed in line with the directive from the Labour Court.

(ii) Secondly, the Labour Act had just been amended as aforesaid.

Among others, the said section 93(5a) of the Labour Act had just been inserted. Disputes of right, as opposed to disputes of interest, would now be resolved in accordance with the new provisions. Among other things, once a Labour Officer made a finding of unfair labour practice against an employer, he or she would have to approach the Labour Court for his or her decision to be confirmed.

The matter was referred back to the Labour Court, by a Labour Administration Officer, who requested for directions.

In March 2016, the Labour Court gave such directions.

It directed that the matter was to be heard by a Labour Officer in terms of section 93(5)(c) of the Labour Act. This is the provision that empowers a Labour Officer to find whether or not an employer is guilty of an unfair labour practice. If he or she makes such a finding, he or she can, among other things, order the cessation of the unfair labour practice and direct the payment of moneys and/or damages.

With the newly introduced section 93(5a) of the Labour Act, the Labour Officer is then to approach the Labour Court for confirmation of his or her decision.

The Labour Officer eventually set to hear the matter in line with the directive from the Labour Court.

In May 2016, he gave his ruling. He made a finding that he had no jurisdiction to determine the appeal. His reason was, that, the first time the applicant had referred his appeal to the Labour Officer (in March 2015) he had erred. He said in terms of section 8 of the National Employment Code of Conduct, no appeal lies to the Labour Officer from a decision of a disciplinary authority at the workplace. It is only an appeal, decision, or the conduct of an appeal authority that may be referred to the Labour Officer.

So, in the end, the Labour Officer held, that, he had no jurisdiction to determine the appellant's appeal because it was not an appeal against an appeal decision, but an appeal against the decision of a disciplinary authority in the first instance.

Before this ultimate conclusion, the Labour Officer had made the observation, that, instead of appealing to the Labour Officer in terms of section 8 of the National Employment Code of Conduct, as he had done, the applicant ought to have appealed straight to the Labour Court, allegedly in terms of section 92D of the Labour Act.

Section 92D of the Labour Act is the one that governs appeals to the Labour Court that are not provided for elsewhere in the Labour Act. It says a person who is aggrieved by a determination made under an employment code, may appeal to the Labour Court in the manner and time prescribed.

In September 2016, the Labour Court confirmed the ruling of the Labour Officer.

But, the applicant had applied to that court for condonation for late noting of appeal. Condonation was refused “…, for failure to exhaust local forum.”

The applicant went back to the workplace. He said heeding what the Labour Officer had said about appeals lying to them only from an appeal decision by, or conduct of, an appeals authority of the employer, he filed an appeal to the Appeals Officer/Appeals Committee a day after receiving the Labour Court's decision.

He also sought condonation for the late noting of the appeal. But, without referring it to the Appeals Officer or Committee proper, the employer, through the General Secretary, acting on external legal advice, dismissed the appeal and the request for condonation on the basis that there was no provision for an application for condonation in the National Employment Code of Conduct.

That was in October 2016.

The applicant appealed to the Labour Officer. He lost. The conclusion reached by the employer's General Secretary was upheld.

The Labour Officer took his decision to the Labour Court for confirmation, purportedly in line with the new section 93(5a) of the Labour Act.

The Labour Court declined to do so on the basis, that, the Labour Officer had an inherent power to hear an application for condonation which he should have exercised and that the decision by the employer, which the Labour Officer had wrongly upheld, was irregular in that it had been made by a fellow employee supplanting an Appeals Committee.

The Labour Court referred the matter back to the workplace and directed the employer to set up an appeals structure for the determination of the applicant's appeal within thirty days, or such extended period as might be granted. The Labour Court also directed, that, in the event that the employer failed to hear the appeal as directed, then, the applicant would automatically be reinstated without loss of salary and benefits while the parties might be taking their case to any next level.

That was in May 2017.

The employer was aggrieved by the decision of the Labour Court. It appealed to the Supreme Court. It took a point in limine, that, by section 93(5a) of the Labour Act, only when a Labour Officer has ruled against an employer is he or she required to approach the Labour Court for confirmation of his or her decision, not, as was the case in this matter, where the Labour Officer has ruled against the employee.

The applicant said he conceded the point in limine. He presumed the Supreme Court would uphold it because it had done so in a previous case where the same point had been raised.

The applicant felt he was back to nowhere.

His appeal was never determined on the merits.

He felt the culprit was section 93(5a) of the Labour Act that allows approaches to the Labour Court by a Labour Officer only where he or she rules against the employer, but not where he or she rules against the employee.

The employee who loses before a Labour Officer has nowhere else to go, whereas an employer who loses before the same Labour Officer is actually and automatically guaranteed another hearing before a court.

The applicant also felt, that, the ambiguity brought about by the error in section 8(3) of the National Employment Code of Conduct blocked his right of access to the courts.

He then turned to the High Court for an order of invalidity against the two offending provisions.

Interestingly, in their notice of opposition, the respondents agreed with the applicant in relation to section 93(5a) of the Labour Act. They said:

“Respondent concedes to the challenges against 93(5a) of the Labour Act [Chapter 28:01] as amended and has since sought to repeal the provision in its current Labour Act Amendment Bill. I however deny that section 8(3) of Statutory Instrument 15 of 2006 violates the Applicant's rights for the reasons advanced in my paragraphs 9 and 10.”

But, despite their denial in regards to section 8(3) of the National Employment Code of Conduct, the respondents essentially conceded the error. They said:

“Indeed, the said section makes reference to a section 2 which is not there; but, however, a departure from the ordinary grammatical interpretation of the section will lead to a reasonable conclusion that the section being referred to is section 6.”

Arguing that a diligens paterfamilias applying their mind to the intention of the Legislature would have come to the logical conclusion that section 8(3) of the National Employment Code of Conduct meant to refer to section 6, the respondents said the remedy sought by the applicant was outrageous and should therefore be dismissed with costs.

Justice must not only be done. It must also be seen to be done.

The respondents openly admit inherent problems or errors in pieces of legislation made by, and administered by them.

In relation to section 93(5a) of the Labour Act, the respondents promised repeal. That has not happened.

In relation to section 8(3) of the National Employment Code of Conduct, the respondents expressly admit the error but urge the applicant to resort to some tenet of construction to unravel what they meant to say.

Yet, in his quest for justice, the applicant has, for more than three years, been shunted from pillar to post by the administrative and adjudication structures under their purview. These structures have differed in their interpretation of the impeached provisions.

What is more, as the respondents are mulling getting rid of section 93(5a) of the Labour Act, the Supreme Court, in an unrelated case, the judgment of which was delivered at about the same time the applicant was filing this application with this court, has impugned the provision and urged the Legislature to have a look at it.

This was in Drum City (Pvt) Ltd v Garudzo SC57-18.

The superior court noted, that, section 93(5a) and (5b) of the Labour Act do not empower the Labour Court to confirm a draft ruling of a Labour Officer made against an employee. The employee is excluded from the confirmation proceedings. Yet, he or she has a direct and substantial interest in those proceedings.

He or she has a right to be heard.

The superior court further said, that, a procedure that says a Labour Court can sit for the confirmation or non-confirmation of a ruling by a Labour Officer, in the absence of an employee, who is an interested party, is an irregularity and a travesty of justice.

The court noted a myriad of problems posed by such a procedure, not least:

(i) The fact that even where the ruling by the Labour Officer is in favour of the employee, but is not confirmed by the Labour Court, the employee who is affected by the non-confirmation cannot appeal. Conversely, where the Labour Court confirms the ruling, the employer may wish to appeal to the Supreme Court, but, the employee is necessarily absent. Yet the outcome at the Supreme Court may be adverse to the employee.

(ii) The fact that even where the Labour Court confirms the ruling against the employee and he or she wants to enforce it by execution, the writ cannot be in his or her name because that name appears nowhere in the final orders.

As a way around the absurdities created by section 93(5a) of the Labour Act, the Supreme Court suggested, that, the employee should always be joined as a party to the confirmation proceedings before the Labour Court. However, the superior court also urged the Legislature to seriously reconsider the provision - exactly the same thing the respondents herein have promised they are doing.

Therefore, it seems obvious that section 93(5a) of the Labour Act is impeachable. The respondents concede it. The Supreme Court virtually confirms it.

The question of the declaration of constitutional invalidity of section 93(5a) of the Labour Act and section 8(3) of the National Employment Code of Conduct was not before the Supreme Court.

It is squarely before me now.

I hold that section 93(5a) of the Labour Act is ultra vires section 56(1) and (3) of the Constitution that guarantee the equality of all persons before the law, and the right not to be treated in an unfairly discriminatory manner on the grounds of, inter alia, economic or social status.

It also violates section 68 of the Constitution that guarantees the right to administrative justice that is, inter alia, lawful, efficient, reasonable, impartial and both substantially and procedurally fair.

The applicant says he seeks the declaratur in terms of section 14 of the High Court [Chapter 7:06].

But, in terms of this provision, a declaratur, it is not sought by anyone and anyhow; otherwise, any public busybody or watchdog whose hobby it is to surf the legislative landscape for any statutory provisions mis-aligned with the Constitution would clog the judiciary with endless suits for declarations of constitutional invalidity.

A mover for a declaratory order, under section 14 of the High Court Act, must demonstrate more than mere academic interest. The court does not decide abstract or hypothetical questions: see Adbro Investments Co. Ltd v Minister of the Interior & Ors 1961 (3) SA 283 (T)…, and Johnsen v Agricultural Finance Corp 1995 (1) ZLR 65 (S). He or she must show the existence of some tangible and justifiable advantage to himself.

In terms of section 14 of the High Court Act, a person who qualifies to move for a declaratory order is one who has an interest in having his or her existing, future or contingent right or obligation determined even if he or she cannot claim any relief consequential upon such determination…,.

In the draft order, the applicant does not seek the determination of existing or future or contingent rights. He does not seek determination of any rights at all. His woes with his employer are all in the past now.

I do not underrate them. It is only because he has been importunate that the matter is now before this court.

But, under section 14 of the High Court Act, one does not seek a declaratur for the determination of rights existing in the past.

I am mindful that section 14 of the High Court Act does not require that one who seeks a declaratory order should claim any relief consequent upon the determination by the court. But, at least, he or she must have an existing or future or contingent right that the court should, or will determine.

It seems the undisclosed lawyers handling the applicant behind the scenes eventually wisened up to this pitfall. They filed heads of argument, even though as a “self-actor” the Rules do not require the applicant to file any. In the very last paragraph, it is submitted, that, in addition to the relief sought in terms of the draft order, the applicant should be granted a further remedy as follows:

(i) That, in the case of the impugned section 8(3) of the National Employment Code of Conduct, the applicant should be granted the right to file an appeal against the decision of the disciplinary authority to the internal appeals authority; or

(ii) That, in the case of section 93(5a) of the Labour Act, the applicant should have the right to appeal against the ruling by the Labour Officer to the Labour Court.

I consider that the applicant's request in the heads of argument brings him within the purview of section 14 of the High Court Act. His claim in the draft order ceases to be merely academic.

But, even if I should be wrong on this, I consider that section 85 of the Constitution has widened the scope under which a declaratur may be sought if it is in relation to the enforcement of fundamental human rights and freedoms under Chapter 4 Part 4 of the Constitution.

In this case, the rights the applicant alleges have been infringed in relation to himself fall under this part of the Constitution. They are the right to equal protection before the law and the right not to be discriminated against (section 56 of the Constitution); the right to administrative justice (section 68 of the Constitution) and the right of access to the courts or some other tribunals (section 69 of the Constitution).

Section 85 of the Constitution reads:

“85 Enforcement of Fundamental Human Rights and Freedoms

(1) Any of the following persons, namely —

(a) Any person acting in their own interests;

(b) Any person acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member, or in the interests, of a group or class of persons;

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members; is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”…,.

Thus, a right existing in the past which an applicant can show was infringed in relation to themselves can support a claim for a declaratur.

However, my conclusion above is only in relation to section 93(5a) of the Labour Act.

I am not satisfied that it was really the typing error in section 8(3) of the National Employment Code of Conduct that led the applicant to adopt the course that he did.

Despite that error, it is evident, even as presently worded, that the reference of a matter to a Labour Officer that section 8(3) envisages, is not from a decision of a disciplinary authority at the first instance. It is from a decision or conduct of an Appeals Authority on appeal.

It was wrong for the applicant to invoke section 8(6) of the National Employment Code of Conduct and assume it applied to his case.

In the final analysis, the applicant, having sought no order as to costs, the following order is issued:

1. It is hereby declared that section 93(5a) of the Labour Act [Chapter 28:01] is in conflict with section 56(1) and (3); section 68(1) and section 69(3) of the Constitution of Zimbabwe and is therefore invalid.

2. The declaration of constitutional invalidity in paragraph (1) above may be referred for final determination by the Constitutional Court of Zimbabwe in terms of section 175 of the Constitution and the Rules of that Court.

3. Subject to paragraph (2) above, the applicant is hereby granted the right to appeal to the Labour Court, as soon as practicable, the decision of the Labour Officer/Designated Agent, E Muzvidziwa, Esquire, handed down on 9 December 2016.

4. There shall be no order as to costs.

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

This is an appeal against the four amended assessments issued by the respondent against the appellant on 23 June 2014 in respect of the four consecutive tax years ended 31 December 2009, 2010, 2011 and 2012.The real issue for determination posed by these assessments is whether the respondent can tax ...

This is an appeal against the four amended assessments issued by the respondent against the appellant on 23 June 2014 in respect of the four consecutive tax years ended 31 December 2009, 2010, 2011 and 2012.

The real issue for determination posed by these assessments is whether the respondent can tax non-existent income through the deeming provisions of section 98 of the Income Tax Act [Chapter 23:06]....,.

On 28 October 1996, the appellant concluded a lease agreement and a separate logistical agreement with a South African company, hereinafter referred to as the related party, for the lease of its mechanical trucks, trailers, and tankers for a fixed rental. The agreements took effect from the date of signature. The lease agreement was further renewed on 8 October 2003, 16 August 2006, and 6 July 2009.

In February 2013, the respondent commenced a tax compliance investigation on the appellant. It was triggered by the shared common ancestry, logo, name, and Managing Director between the two companies.

The Commissioner identified five (5) areas of dispute, which resulted in the exchange of a number of e-mails with the appellant between 8 August and 8 October 2013. Only two areas of dispute remained unresolved by 8 October 2013:

(i) The first concerned the payment by the appellant of the salaries and wages of the local drivers used by the related party;

(ii) While the second was in respect of under-invoicing.

The issue relating to the drivers was resolved on 23 April 2014.

The failure to reach agreement on the second issue prompted the respondent to raise the disputed amended assessments on 23 June 2014.

The appellant objected to these amended assessments on 22 July 2014. The respondent disallowed the objection on 14 November 2014. The appellant gave notice of its intention to appeal on 18 November 2014 and filed its notice of appeal on 28 November 2014 and case on 18 December 2014. The respondent duly filed the Commissioner's case on 30 March 2015.

The appellant contended, that, the rentals in the agreements were fair and reasonable while the respondent contended, that, they were outrageously low so as to constitute under invoicing and therefore tax avoidance.

The respondent compared the local charges imposed by the appellant on three (3) local tobacco companies on pp1.1 to 3.2 of exhibit 2 against the Currency Declaration Form, CD3 income received from the related party on pp4.1 to 9.2 of exhibit 2.

The income earned from local operations and from CD3 rentals was conveniently summarised by the appellant in tabular form…, which I reproduce below as Table 1.

Table 1

	2009	2010	2011	2012
CD3-revenue R	2 579 685.00	2 429 399.00	1 815 806.00	1 795 380.00
CD3 revenue USD	298 658.98	336 530.44	257 329.12	224 855.18
Other local income USD	144 730.00	245 493.00	321 525.47	298 391.98
Total US$ in FSs	443 388.98	582 023.44	578 854.59	523 247.16
Av exchange rate	8.64	7.22	7.06	7.98

Notwithstanding the absorption of running costs by the related party, the respondent maintained, that, the rentals were outrageously low and unrealistic in comparison with the charges imposed by local cross border hauliers.

It applied the related party's 2013 rate of R22.47 on the distance covered in each year to compute the taxable income set out on page 50.2 of exhibit 1, which formed part of the amended assessments.

It was common cause that the rate was in tandem with the market rates charged by third parties in 2013.

At the appeal hearing, the appellant relied on the evidence of one of its directors and public officer and nephew to its 80 year old founder and Managing Director, who has stood in the position of a General Manager since 1995 and has been a member of the executive committee of the Transport Operators Association of Zimbabwe, one HJR and the 374 paged lever arch file, exhibit 1, and one paged exhibit 4.

The respondent called the evidence of two of its Chief Investigations Officers, one of whom was a purported transfer pricing specialist and relied on the 32 paged exhibit 2 and 6 paged exhibit 3A, 3B and 3C in addition to the Rule 11 documents filed of record.

At the pre-trial hearing of 1 June 2015, the following six issues were referred on appeal for determination:

(i) Did the appellant in fact receive the additional income assessed by the respondent, and, if so, what was the source of the income.

(ii) Whether or not the transactions between the appellant and the related party resulted in the appellant being deemed to have received additional income for tax purposes.

(iii) Whether or not the transactions that were being carried out by the appellant with its related company fall within the ambit of section 98 of the Income Tax Act [Chapter 23:06], and, if not, whether the respondent was entitled, as a matter of law, to utilise section 98 of the Income Tax Act.

(iv) In the event of any such additional income, or deemed income, having been correctly assessed by the respondent, whether the respondent was obligated to deduct from that income the expenses which would have been incurred had the appellant undertaken such transactions; in particular, the cost of the diesel that would have been expended in conducting such transactions.

(v) Whether or not SI163 of 2014 is applicable in casu.

(vi) The appropriate penalty.

At the commencement of the appeal hearing, on 14 September 2015, counsel for the appellant abandoned the fourth issue and persisted with the remaining five issues.

The evidence was mostly common cause.

The appellant was incorporated on 12 June 1960 under a different name and adopted its present name on 10 June 1983. The major shareholders of the appellant were the 80 year old Managing Director and a registered trust.

The Managing Director also held the same position in the related party, a company he promoted in 1978.

It was common cause, that, even though the two entities did not have common shareholders, they were related parties….,.

The appellant operated in the local and regional transport industry with a complement of 24 mechanical horses, 83 trailers, and 11 tankers. A common recurring statement in the Director's report in each of the four tax years under consideration was that it was “engaged in transport and operated principally in Africa.”

The operations were manned by 7 Head Office staff, 10 workshop employees, and 110 local, highly skilled articulated truck and trailer, internationally certified drivers with mostly over 10 years driving experience.

The transport business is dependent on the availability of imported fuel, spare parts, and tyres.

In 1996, the appellant had difficulties in sourcing scarce foreign currency locally to service its cross border operations. In the aftermath of the demise of apartheid in South Africa, in 1994, the South African economy became more integrated with other regional economies.

The appellant alleged, that, it staved off the spectre of liquidation by concluding the 1996 rental agreement with the related party through which the related party used the appellant's equipment to carry goods, by road, between South Africa and the designated countries to the north.

The agreement was executed on 28 October 1996 and renewed for three years on 8 October 2003 and then extended for a further 3 years on 16 August 2006. On 6 July 2009, in deference to the introduction of the multi-currency regime in Zimbabwe, the agreement was infused with an indefinite lifespan.

The 2003 agreement was signed by the uncle and nephew on behalf of the related party and the appellant, respectively. The 2006 and 2009 agreements were signed by other representatives of the related party with the nephew.

The notable terms and conditions of the agreements were that the related party used the appellant's excess fleet based on an agreed fixed fee per leg per trip and not on the distance covered.

With effect from 1 July 2009, the rental was fixed at ZAR1,000 per journey for the use by the related party of any locally registered trailer drawn by a South African registered horse. The rental for a horse, and a horse and trailer, were indicated on pages 15 and 16 of exhibit 1.

These rentals were all increased annually by 10%.

In addition, the related party was responsible, at its own cost, for running maintenance and repairs of the equipment comprising of the cost of insurance, tyres, rims, spare parts and fuel and regulatory requirements such as road toll fees, environmental and port health fees attached to the equipment but not to any damage attributable to the negligence of the appellant's drivers or third parties.

The appellant employed and remunerated the local drivers seconded to the related party and did not receive any compensation from the related party.

However, the appellant invoiced the related party for any maintenance and repairs carried out in Zimbabwe on all equipment used by the related party.

It was the uncontroverted testimony of the nephew, that, a portion of the fee was surrendered to the Reserve Bank of Zimbabwe and another used to purchase the requirements of the appellant's local fleet, while the balance was sold on the inter-bank market to meet local expenses and staff salaries and wages.

This situation continued until hyperinflation adversely affected the viability and pricing of the domestic transport services in 2008.

The appellant, however, deliberately failed to disclose the 2003 agreed rentals in appendices C1, C2 and C3 to that agreement that were adopted by both the 2006 and 2009 agreements and the logistical and rental agreements of 1996 but elected to reveal the escalation clause set out on page 12.29 of exhibit 1.

However, the agreed rentals for the rented horses were indicated on page 15 and 16 of the exhibit 1 for each of the four (4) tax years and for each of the routes covered.

The southbound trip to Harare and Kwekwe in Zimbabwe from Lusaka, the Copperbelt, Blantyre and Lilongwe accrued different rentals, denominated in South African rands from the north bound trips as indicated in the following table 2:

Table 2

2009

2010

2011

2012

2013

LSK-HRE

HRE-LSK

1420

2 310

1 562

2 541

1 800

3 000

2 050

3 420

2 260

3 760

CPBLT-HRE

HRE-CPBLT

1 970

3 930

2 167

4 323

2 500

5 000

2 850

5 700

3 140

6 270

BLA-KWE

KWE-BLA

NIL

3 110

NIL

3 421

NIL

4 000

NIL

4 560

NIL

5 020

BLA-HRE

HRE-BLA

1620

2 910

1 782

3 201

2 050

3 680

2 330

4 200

2 570

4 620

LLE-HRE

HRE-LLE

2 080

3 370

2 288

3 707

2 630

4 300

3 000

4 900

3 300

5 400

Transit rates

LSK-HRE –JBG

JBH-HRE-LSK

1 320

2 950

1 452

3 245

1670

3 730

1 900

4 200

2 100

4 620

CBLT-HRE-JBG

JBG-HRE-CBLT

1 570

3 650

1 727

4 015

2 000

4 620

2280

5 200

2 500

5 720

2009

2010

2011

2012

2013

BLA-HRE-JBG

JBG-HRE-BLA

1 560

3 470

1 716

3 817

2 025

4 390

2 300

5 000

2 530

5 500

LLE-HRE-JHB

JHG-HRE-LLE

1 740

3 930

1 914

4 323

2 200

4 970

2 500

5 600

2 750

6 160

The northbound routes to Zimbabwe consisted of the Johannesburg to Harare, Johannesburg to Bulawayo, Johannesburg to Midlands, and Johannesburg to Livingstone routes. The rental was the same for each route in each of the four (4) years, respectively.

In 2009 it was R5,050; in 2010 it was R5,555; in 2011 it was R6,400; and, in 2012 it was R7,300.

The north-bound routes from Zimbabwe were the Harare-Lusaka, Harare-Copperbelt, Kwekwe-Blantyre, Harare-Blantyre and Harare-Lilongwe routes.

The rentals were different on each route and in each year. The cheapest was the Harare to Lusaka route ranging between R2,310 in 2009 and R3,420 in 2012. The most expensive was the Harare to Copperbelt route, which ranged between R3,930 in 2009 and R5,700 in 2012.

The transit routes were the Johannesburg to Livingstone and Johannesburg to Harare destined for Lusaka route, for which the related party paid between R2,950 in 2009 and R4,200 in 2012 and the Johannesburg to Harare destined for Copperbelt for which the related party paid R3,650 in 2009 and R5,200 in 2012 to the appellant.

The last transit route was from Johannesburg to Harare destined for Blantyre and from Johannesburg to Harare destined for Lilongwe. The related party paid the appellant between R3,470 in 2009 and R5,000 in 2012 for the route to Blantyre and between R3,930 in 2009 and R5,600 in 2012 for the route to Lilongwe.

The rental for the trailer only was R1,270 in 2011 and R1,450 in 2012.

The south bound journeys were the exact opposite of the north bound ones.

The rates from the Zimbabwe centres to Johannesburg were the same in each year. The rentals were R2,810 in 2009, and R3,091 in 2010 and R3,560 in 2011 and R4,060 in 2012.

The south bound transit rates were Lusaka to Johannesburg via Harare that ranged between R1,320 in 2009 and R1,900 in 2012 while the Copperbelt to Johannesburg via Harare route ranged between R1,570 in 2009 and R2,280 in 2012; and, lastly, the transit rate between Blantyre and Johannesburg via Harare ranged between R1,560 in 2009 and R2,300 in 2012 while the Lilongwe to Johannesburg via Harare route ranged between R1,740 in 2009 and R2,500 in 2012.

The related party paid R1,270 for the trailer per leg per trip on each of these routes. In 2012, the north bound trailer rental was R1,450.

The journey from Johannesburg to Harare and back consisted of two trips while the journey from Johannesburg to any of the destinations outside Zimbabwe and back consisted of four (4) trips.

The maintenance and running expenses incurred by the related party, in respect of 21 mechanical horses, between 1 January 2009 and 31 December 2012 amounted to R1,854,841 for spares and maintenance…,.; US$436,983 for labour on repairs and maintenance.

In the same period, tyres worth R1,151,777 were purchased by the related party and R536,021=51 was expensed on 69 trailers. The related party also spent the sum of R9,128,122 on fuel, US$1,809,460 on insurance, and US$40,992 on lubricants.

The mechanical horses traversed 1,771,964km…, during the four year period in question. The distance covered by each identified mechanical horse, and the cost of maintenance and running expenses, tyres and fuel in each year was listed on pages 23 to 24.6 of exhibit 1.

The yearly amounts expensed on each line item by the related party on the leased equipment was conveniently summarised by the appellant on pp24 and 42.5 of exhibit 1.

I reproduce the essential costs in Table 3 below.

Table 3: Expenses paid by related party on leased equipment

	2009	2010	2011	2012	Total
Km travelled	359 478	505 748	456 664	450 074	1 771 964
Spares in R	684 101	282 918	413 281	474 541	1 854 841
Labour in R	161 168	66 653	97 365	111 797	436 983
Tyres in R	233 661	328 736	296 832	292 548	1 151 777
Fuel in R	1 406 193	2 198 516	2 484 789	3 039 323	9 128 822
Insurance in R	489 000	489 000	440 100	391 360	1 809 460
Lubricants in R	15 119	6 252	9 134	10 487	40 992
Total cost in R	2 989 241	3 372 076	3 741 501	4 320 058	14 422 875
Average cost per km in R	8.32	6.67	8.19	9.60	8.14

The respondent derived the gross charges of cross-border transactions from the third party verification exercise that it conducted on three local cross-border hauliers, TCS, CT and CCC.

It wrote exhibits 3A, 3B and 3C between 2 July 2013 and 16 September 2013 seeking the gross rates in both United States dollars and South African rands charged in respect of each tax year under investigation on 19 regional routes traversed by the related party.

The responses…, were received between 5 August and 19 September 2013.

These parties did not offer a separate truck and trailer service. They factored into the freight rates the operational costs of fuel, vehicle inspection, toll and environmental management fees, insurances and driver's allowances, the distance covered, the nature of the cargo, and competition.

The freight rates ranged between US$1.60 per km and US$2.30 per km for both south and north bound routes during the period to the end of the 2012 tax year.

In respect of the 2013 tax year, the average rate was US$2.50 per km.

One of the local hauliers supplied very detailed information on the freight rates. It used the cost plus mark-up model where the mark-up ranged between 7% and 12%. It charged between US$750 and US$1,300 for the south bound routes and between US$1,300 and US$2,500 for the north bound routes. While it charged per trip like the related party, it translated these charges to between US$1.60 and US$2.30 per km.

The nephew listed 11 advantages that accrued to the appellant from the rental agreement.

The appellant was, inter alia, assured of prompt and steady flow of income and a regular foreign currency supply, accounted through the Reserve Bank of Zimbabwe CD3 forms, to meet local expenses from a single client; it's fleet was maintained at no cost to it and prevented from deteriorating from disuse; it was able to offer limited local transport services; it did not incur marketing and clearing and depot expenses in South Africa, Zimbabwe, Zambia and Malawi; it had a guaranteed free source of fuel at its depot in Zimbabwe for local use; and, lastly it was able to retain a pool of experienced internationally certified drivers starving it off liquidation and heavy retrenchment costs.

On the other hand, the related party benefited from the use of authorised equipment on Zambian, Malawian, Batswana and Mozambican public roads and highly skilled drivers who were unable and unwilling to secure work permits in South Africa.

It was common cause, that, the respondent treated the appellant as a cross-border haulier and applied the 2013 freight rate charged by the related party, of R22.47 per km, retrospectively to each of the tax years in dispute. It ignored the aggregate expenses of R21.20 per km incurred in raising this amount.

It computed the gross revenue earned from the leased equipment by multiplying this amount by the number of kilometres travelled in each year and converted the total to United States dollars using the uniform and inaccurate cross rate of 1US$ to R10.

The respondent further calculated the yearly running maintenance and repair costs expensed on the leased trucks and converted it to United States dollars using the inaccurate exchange rate of 1US$ to R10 and added the figure to the transport services income in the annual financial statements derived from the CD3 forms.

It then deducted the aggregate amount from the gross revenue earned from the leased equipment aggregate figure from the CD3 revenue and running maintenance and repair costs. The variance, whether positive or negative, was added to income in the computation of taxable income.

The appellant gave contrary evidence in two respects:

(i) The first was on whether it operated a transport service in Zimbabwe only or whether it also operated across our borders.

(ii) The second was on whether it charged per trip or per km in respect of the local transport services.

The sole witness called by the appellant testified that the appellant operated a transport service in Zimbabwe only.

In each of the tax years in issue the same witness signed the Director's report in which he proclaimed that the appellant operated principally in Africa.

In regards to the second aspect, he averred, in paragraph 39 of his statement, which he adopted in his evidence in chief, that, the appellant charged a United States dollar denominated daily rate.

At p50.1 paragraph 12 of exhibit 1, the appellant's South African based external accountants wrote that “the appellant does operate its own vehicles locally within Zimbabwe and in those instances it charges a US$ rate per km.”

In fact, under cross-examination, the witness maintained, that, the local expenses were based on operational overheads comprised of running costs, lubricants, fuels, salaries and wages, and not on the distance or the nature of the load.

He maintained, that, the dominant intention behind these charges was to cover overheads and remain viable and not the avoidance or reduction of tax. He was adamant, that, even though the appellant was a perpetual loss maker before, during, and after the tax years in question, the rentals were market based.

He sought to demonstrate, by reference to a random selection of charges on p31.3 to 31.5 of exhibit 1 that the CD3 income constituted 42% of the related party's Group profit….,.

It was common cause, that, the fees charged on north bound routes were higher than those on south bound routes because the former carried finished products while the latter conveyed raw materials. It was common cause, that, the exchange rate used in the computation of the disputed income tax of 1US$ to R10 was inaccurate in respect of each of the tax years under consideration.

The sole witness applied the “correct rates” used by the related party in each of these tax years to the formula invoked by the respondent including the use of the wrong exchange rate and produced different results in exhibit 4.

The correct gross revenue rates per km were ZAR16.55 in 2009; ZAR17.52 in 2010; ZAR19.45 in 2011; and ZAR20.04 in 2012.

The appellant would have incurred a loss of US$129,377 instead of a profit of US$65,433=97 in 2009; a loss of US$33,160 instead of a profit of US$217,185=16 in 2010; a loss of US$64,793 instead of a profit of US$73,119=91 in 2011 and a loss of US$53,304 and not a profit of US$56,063=46 in 2012….,.

The respondent did not use these comparative rates but the 2013 figure suggested by the appellant's South African based external accountants as acknowledged by the Commissioner-General in her determination of 14 November 2014…,. She wrote that:

“The basis or rate of R22.47 that was used to determine the taxable income on estimated assessments was the rate that was used by yourselves in the tax year 2013. In the absence of information on other companies that could be compared with the appellant dealings when they were determining taxable income, this rate becomes the only basis for estimating income. Please note that if you have information pertaining to the actual and correct rates that were used in the tax years under contention, you are free to submit it for consideration.”

I turn to determine the issues that were referred on appeal....,.

Whether or not SI 163 of 2014 is applicable in casu?

It was common cause that the Finance Act Tax Amnesty Regulations, SI163 of 2014 were promulgated in terms of section 23 of the Finance Act (No.2) of 2014. They targeted tax defaulters and evaders. The period covered by the tax amnesty ran from 1 October 2014 to 31 March 2015 and was further extended to 30 September 2015.

The application was made on the prescribed form and full disclosure was required. All taxpayers who had made self-assessments, paid tax, were under investigation or audit, or were challenging their assessments were not eligible.

The appellant fell into the excluded category of taxpayers.

The eligible taxpayers were exempted from paying additional tax, penalties, and interest once the application was granted.

Counsel for the appellant contended, that, the appellant, as a law abiding citizen, was being discriminated against by being asked to pay additional tax and interest in violation of section 56(1) of the Constitution which required that all persons be treated equally before the law and have equal benefit of the law. He prayed for the extension of the benefits to the appellant.

He submitted, in the alternative, that, in exercising its discretion, this Court exempts the appellant from payment of any additional tax and interest.

Sections 56(1) and (6) of the Constitution stipulate that:

“(1) All persons are equal before the law and have the right to equal protection and benefit of the law.

(6) The State must take reasonable legislative and other measures to promote the achievement of equality and to protect or advance people or classes of people who have been disadvantaged by unfair discrimination, and —

(a) Such measures must be taken to redress circumstances of genuine need;

(b) No such measure is to be regarded as unfair for the purposes of subsection (3).”

Section 56 of the Constitution falls under the cluster of fundamental human rights and freedoms.

In terms of section 45(3) of the Constitution, they apply to both natural and juristic persons and must be construed in terms of section 46 of the Constitution, which, amongst other requirements, prescribes the promotion of the founding values and principles in section 3 of the Constitution that underlie a democratic society based on openness, justice, human dignity, equality and freedom by a court of law.

The right to equality before the law and equal benefit to the law are, however, not absolute rights.

They are limited in extent and application by section 86(2) of the Constitution which states that:

“(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality, and freedom, taking into account all relevant factors, including —

(a) The nature of the right or freedom concerned;

(b) The purpose of the limitation, in particular, whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;

(c) The nature and extent of the limitation;

(d) The need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others;

(e) The relationship between the limitation and its purpose, in particular, whether it imposes greater restrictions on the right or freedom concerned than are necessary to achieve its purpose; and

(f) Whether there are any less restrictive means of achieving the purpose of the limitation.”

The inarticulate major premise embodied in counsel for the appellant's submission was that the tax amnesty provisions were, to the extent that they discriminated against the appellant, unconstitutional.

He did not disclose how the Finance Act (No.2) of 2014, on which these amnesty provisions are founded failed the test of constitutionality stipulated in section 86(2) of the Constitution.

I await proper and well-reasoned, rather than bald and unsubstantiated legal submissions on the point that would serve justice to both the taxpayer and the Commissioner.

The arguments advanced are inadequate to convince me, on a balance of probabilities, that, the appellant should be accorded the same treatment by the Commissioner or this Court as the truant taxpayers contemplated in the tax amnesty provisions.

The main and alternative submissions are devoid of depth and are accordingly dismissed.

I therefore hold, that, the statutory instrument in question has no application in the present matter.

HHH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J

“Much ado about nothing.”; 'Storm in a tea cup.'

One cannot find a better phrase to aptly describe the comedy of errors displayed by the National Prosecuting Authority, and, in particular, its Acting Prosecutor General.

An important and serious case involving a high ranking Government and Constitutional appointee in the stead of the Prosecutor General, who is the head of the National Prosecuting Authority, albeit on suspension, was reduced to a huge fuss over a trifle.

Incidentally, William Shakespeare, the great English poet, play-writer, and actor was the author of both comedies 'Much Ado About Nothing' and 'Comedy of Errors.'

The trifle, of course, is the recusal of the judge, myself, from presiding over the accused's trial.

I do not, however, suggest that an application for recusal of a judge is trivia. It arises from the right to a fair hearing by an impartial and independent tribunal.

The trivia arises from the fact, that, it is a simple procedural application which does not go to the resolution of the merits of a case and ought not to derail or delay the due administration of justice.

Ordinarily, an application for recusal of a judicial officer from presiding over a matter placed before him is a routine procedure. Such applications seldom take the form of protracted argument as obtained in this case.

Usually, where parties are legally represented, counsel will discuss the concerns of the party who seeks to have the judicial officer recuse himself/herself beforehand. It should never be a hide and seek game. The party with concerns may, in the process of their discussion, disclose such matters unknown to the other party as would inform the other party of the reasons why he or she believes that a particular judicial officer should not handle the matter.

Normally, counsel will then make a courtesy call upon the judicial officer concerned and the party seeking the recusal will advise the judicial officer of the concerns of his or her client.

The judicial officer may, at that stage, find that the concerns raised ground good cause for recusal. In such a case, the judicial officer will simply agree to the recusal and cause the matter to be allocated to another judicial officer.

The issue, in other words, is dealt with administratively.

Where the judicial officer is not inclined to recuse himself or herself because there is, in his or her opinion, no just cause for the recusal, he or she will direct that formal application is made in open court upon the matter being called. The judicial officer will then make a determination on the application.

Applications for recusal of the judicial officer, where formal application is necessary, are, under the ordinary course of procedure, dealt with summarily.

The judicial officer will pronounce his or her recusal or refuse the motion at the end of argument so that proceedings are not delayed further over who should preside over them.

Regrettably, in this case, I had to reserve judgment because of the conduct of the National Prosecuting Authority and its Acting Prosecutor General; the latter being the culprit or spoiler who sought to throw a monkey wrench in the works, or, put simply, who conducted himself in a manner which was inimical, pernicious, or detrimental to the smooth conduct of proceedings in this matter.

The bungling by the Acting Prosecutor General and his seeming disdain or disrespect for the authority of the court, or myself, necessitated the need to cause a transcription of the proceedings to be prepared for posterity and reference.

Background

The accused person is facing six (6) counts of Criminal Abuse of Duty as a Public Officer as defined in section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In the alternative, he faces six (6) counts of defeating or obstructing the course of justice in contravention of section 184(1)(b) of the Criminal Law (Codification and Reform) Act.

On 16 November 2016, the accused person was indicted to the High Court for his trial by the Provincial Magistrate in terms of the relevant provisions of sections 65 and 66 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The indictment papers were prepared by or on behalf of the Acting Prosecutor General who signed them.

The Acting Prosecutor General was obliged, in terms of section 66(7) of the Criminal Procedure and Evidence Act to, and did, lodge copies of the indictment papers whose service he caused to be made upon the accused person.

Once indicted or committed to the High Court for trial, the case became deemed as pending trial before this court.

The trial date was fixed as 13 February 2017 by the Acting Prosecutor-General.

It is necessary, at this stage, to note, that, administratively, at the High Court Harare, the National Prosecuting Authority has three criminal trial court rooms allocated to it. There is also another court which exclusively deals with bail applications. There are also two Criminal Appeals Courts devoted to dealing with Criminal Appeals.

These six (6) courts are created for discharge of the prosecutorial mandate of the National Prosecuting Authority as set out in section 258 of the Constitution of Zimbabwe (2013) as read with section 12 of the National Prosecuting Authority Act [Chapter 7:20] and for disposing of bail applications and appeals.

My judgment, however, focuses on the criminal trial courts.

To state the obvious, the criminal trial courts are court A, B and D.

Administratively, the National Prosecuting Authority is the one which sets down its cases in the said courts.

The National Prosecuting Authority prepares the court roll or cause list each High Court term. The National Prosecuting Authority's set down office is based at and operates from its offices.

The question then arises: “How does a judge become seized with a criminal trial?”

The procedure is, that, the administrative head of the High Court, through divisional heads, simply assigns a judge to a particular court for a certain period. A duty roster is prepared and does not depend upon the cases set down by the National Prosecuting Authority in a particular court.

The duty roster is not a secret document, and the National Prosecuting Authority knows before the beginning of each court term as to which judge will be presiding in each of the criminal trial courts.

I have set out the above administrative process to show that the National Prosecuting Authority knew long before the trial date of the accused person that the judge who was presiding in Court A, in which the case was enrolled, was myself.

It was not as if a judge, myself, was specifically assigned by the court administration to deal with the case in casu.

It will therefore be apparent, when I deal with the merits of the recusal application, that, the Acting Prosecutor General must have known who the presiding judge in Court A, in the first term of 2017, was.

By not seeking the recusal of the judge from presiding over the case before the set down, it meant that the National Prosecuting Authority, and its Acting Prosecutor-General, did not have any qualms with the judge whose background and past connection with the National Prosecuting Authority, and the accused, were matters within their peculiar knowledge and largely public knowledge because the fact of the judge having been a past board member of the National Prosecuting Authority was public knowledge. The appointment to the Board was gazetted in the Government Gazette.

It should also be noted, that, the existence of the National Prosecuting Authority Board derives from section 259(10) of the Constitution as read with section 8 of the National Prosecuting Authority Act.

The judge, as is common cause, and, upon a reading of the National Prosecuting Authority Act, was a ministerial appointee who did not owe his appointment to the Prosecutor General or any member of the National Prosecuting Authority as listed in section 4 of the National Prosecuting Act.

The judge, therefore, did not owe any allegiance to the Prosecutor-General but to the National Prosecuting Authority and the State.

Admittedly, whilst the Prosecutor General was, and is, the Board Chairperson of the National Prosecuting Authority, he has no power to appoint or dismiss a Board member.

The relationship between the judge, as a Board member, has to be considered as professional where the duties of Non-Executive Board members are clearly spelt out in the Constitution and the National Prosecuting Authority Act.

In particular, in the exercise of its mandate, the Board would, and was, guided by section 260(1) of the Constitution which guarantees the independence of the Prosecutor General in exercising his or her functions.

Section 259(10) of the Constitution is clear, that, the function of the Board is to employ persons who will assist the Prosecutor General in discharging that office's sanctions.

Section 6 of the National Prosecuting Authority Act reinforces the independence of the Prosecutor General from being subject to the Board.

In short, the Board superintends the human capital side of the National Prosecuting Authority - except for the Prosecutor General.

The issue of the relationship between the Board and the Prosecutor General has to be ventilated, in summary, because, as will become apparent in this judgment, the Acting Prosecutor General raised it as a ground for recusal of the judge, noting that the judge had been a Board member of the National Prosecuting Authority with the accused as Chairperson in his capacity as Prosecutor General.

In other words, the Acting Prosecutor General's view was that the statutory professional relationship between the Prosecutor-General and the judge, as Board member, was good ground for the judge to recuse himself from presiding over the present case.

It is also important to note, at this stage, that, whilst the judge was appointed Board member of the National Prosecuting Authority in or about December 2014, the indictment against the accused person relates to the period 20 October 2009 to 3 June 2010, in respect of the first five (5) counts, and to 29 January 2016 in respect of the sixth or last count.

The judge was not a Board member during the periods mentioned in the indictment.

The National Prosecuting Authority Act was gazetted on 11 July 2014. The Board and National Prosecuting Authority was not in existence by June 2010.

The judge had long been appointed to the High Court bench, on 7 September 2015, by the time the allegations against the accused person of 29 November 2016, in count 6, occurred.

These considerations would have been relevant, and played in the mind of the judge in considering whether he saw or felt cause to unilaterally recuse himself from presiding over the case.

The facts alluded to above were within the knowledge of the National Prosecuting Authority, and, hopefully, its Acting Prosecutor General, before the accused's trial date.

Any other relationship which the judge may have had in interacting with the National Prosecuting Authority and its Prosecutor General, when the judge was still a practising legal practitioner, would have been known by that office.

The question which begs for an answer is: why the National Prosecuting Authority was content to have the judge sit in the matter and only make a turn round after the hearing of the case had commenced and certain orders and directives given.

Is it because the National Prosecuting Authority was expecting a pre-conceived result and became apprehensive that its expectations may flounder?

The timing of the application cannot escape speculation or conjecture as to whether or not it was well meaning and devoid of other extraneous considerations other than the pursuit of fair, just, impartial, and transparent justice deliverance.

Events of 13 February 2017

On the morning of 13 February 2017, the lead prosecutor, Mr Chingwinyiso, made a courtesy call in the judge's chambers with two of his assistant prosecutors and the accused's counsel, Mr Mukweva.

After introducing themselves, I asked the prosecuting team if they were ready to proceed and if the defence team was also ready to proceed.

I was advised that the defence had served the prosecution with an application in court that morning and that the prosecution had not been made aware, beforehand, of this application.

I directed that whatever application it was should be dealt with in court.

I was advised that the lead defence counsel, Advocate Thabani Mpofu, could not come to chambers as he was arranging to postpone another matter.

The rest of what then transpired thereafter is captured on record and the same has been transcribed.

It will be noted, that, I proceeded to court without any hint by the prosecuting team, whatsoever, that my presiding over the trial was an issue.

When the case was called, and after counsel introduced themselves, Mr Mukweva, for the accused person, formally advised the court that Advocate Thabani Mpofu, whom he had instructed to represent the accused person, was still tied up in another court in a civil matter.

The court allowed the defence a brief adjournment for defence counsel to find out the position with Advocate Mpofu on his availability. The court also asked Mr Mukweva whether the trial would be proceeding.

He indicated that the defence intended to make an application which had been prepared and served on the prosecution team in court. He submitted that the application had been served late because counsel prepared it late. Mr Mukweva indicated, that, the application would be made by Advocate Mpofu.

State counsel, Mr Chigwinyiso, raised his objections to how the defence had sought to serve the application in court. He indicated that the application could not be considered as having been served without a return of service in the form of the stamp of the National Prosecuting Authority to evidence that it had been received.

Mr Chigwinyiso sought a deferment of the case to the following day.

The court was not inclined to postpone the case before it was put in the picture of what exactly the application was about and before the issue of the availability of Advocate Mpofu was dealt with.

Before adjourning the case, the court asked counsel whether the application had been filed because there was no copy of the same on record.

Mr Mukweva indicated that he had just had the application issued by the Registrar and had brought all stamped copies to court.

I did not consider that this was proper because the Registrar should have retained the copies of the application for the record.

I directed Mr Mukweva to let the court have copies of the application and he handed, over the Bar, a photocopy of the application on which the name of the accused was inscribed in long hand in the name citation with the originally typed name cancelled on the first page headed: 'Application for Constitutional Relief'.

The next page was the accused's affidavit and there was no alteration to the citation of the parties names.

The next document was the draft order and the typed name “Martin Dinha” in the heading was cancelled and the cancellation initiated or signed for. The accused's name was substituted in long hand where the typed name 'Martin Dinha' had been cancelled.

The court adjourned the case to 11:15am to allow time for State and defence counsels to discuss the application and agree a way forward.

The adjournment of 30 minutes would also afford the court time to read through the application and for Advocate Mpofu to avail himself.

The court also advised counsel that it did not want to let the case be bogged down in “unnecessary technicalities.”

Defence counsel was also ordered to prepare sufficient copies of the application for the court.

When the court resumed, Advocate Mpofu apologized for his delayed attendance and for not timeously placing his intended application before the court and served the State timeously.

He also apologised for the mix up in the name of the accused on the cover of the application.

He handed, over the Bar, a corrected copy of the application.

The substance and content of the application was the same as the one handed over by Mr Mukweva prior to the adjournment.

Advocate Mpofu further submitted, that, the State and defence counsels had liaised over the application and agreed that it be made the following day at 11:30am with the State counsels having undertaken to file their response by 10:00am.

I directed Advocate Mpofu to place on record what the gist of the application was because the court needed to appraise witnesses, and other interested parties, who sat in the court room, of the reason for postponing the matter.

To simply state, that, the case was being postponed for purposes of making an undisclosed application as to its nature or purport would not have been sufficient or proper.

Advocate Mpofu then submitted, that, he would be making an application supported by the accused's affidavit to declare the prosecution of the accused void on account of certain provisions of the Constitution and for alternative relief that the prosecution be stayed pending determination of the constitutional process underway whereby His Excellency, the President of Zimbabwe had invoked the provisions of section 187 of the Constitution.

Section 187 of the Constitution aforesaid deals with the removal from office of judges and applies to the Prosecutor General.

In response, Mr Chigwinyiso introduced a fourth member of his prosecuting team, a Mr Timothy Makoni.

He acknowledged, that, the defence had filed an amended application but submitted, that, what was before the court were just papers because he could not agree that the State had been served with the application until such time that a copy of the application had been served at the offices of the National Prosecuting Authority and its date stamp franked thereon.

He submitted, that, once this formality had been followed, the prosecution would then be able to respond accordingly - possibly by 10:00am.

I asked Mr Chigwinyiso whether, in essence, he was submitting that the State needed time to consider the application.

Mr Chigwinyiso submitted, that, even if the prosecution and the court were in possession of the application, there was still no application until the same had been franked by the National Prosecuting Authority at their offices.

Herein started the comedy of errors, the much ado about nothing or storm in a tea cup.

I ruled that the court did not see any logic in his reasoning and insistence that the application could only be treated as being properly before the court if it was served on the offices of the National Prosecuting Authority and its magic date-stamp franked on it.

I ruled, perhaps to the chagrin of the prosecuting team, that, it had been served with the application and was expected to respond to it and that it would assist the court if a written response was similarly filed.

The court was not referred to any Rule in criminal procedure which requires that a written application objecting to an indictment being tried can only be deemed proper if it has been served at the offices of the National Prosecuting Authority and its stamp franked on the copy served upon the Authority.

Applications to quash an indictment, as was sought in the main by the accused, are made before the accused pleads.

The law, and, in any event, logic and common sense dictates that the State is given reasonable notice of such application.

Sections 170, 171, 178 and 179 of the Criminal Procedure and Evidence Act are instructive.

It just defies logic for the State counsel to admit, that, he has been handed a copy of a filed application but will not recognize it as such until a copy thereof has been served at his Head Office.

Such attitude was farcical.

Notwithstanding the attitude of the prosecutors, I asked whether, in view of the nature of the application, they were content with being given until 10:00am to file a response or they needed more time.

Mr Chigwinyiso then suggested that the State be given until 2:15pm the following day to file its response.

I then agreed to grant the indulgence to 2:15pm.

I then asked the Prosecution team whether there were any witnesses to be warned.

Witnesses Messrs Mabahwama, Uladi, Dube, Sergeant Shumba, Mutsonziwa, and Hove were called into court.

I explained the deliberations which had gone on, the late filing of the defence application, the need for the State to respond in writing thereto, the nature of the application, and the agreement by the State and defence counsel to defer the hearing to the next day.

I confirmed with Mr Chigwinyiso that he could advise the witnesses to avail themselves at short notice.

It was agreed that the witness be discharged from attendance until called, after the determination of the application.

As regards the accused person, the record will indicate that I then said:

“Stand up P.G. I am postponing this case, by consent, to 2:15 tomorrow and you are ordered to appear at that time. Thank you all.”

In referring to the accused person as PG (Prosecutor General) I did not realize, nor anticipate, as I was later to discover, that, I had annoyed or irritated the Acting Prosecutor General to whom the reference was reported.

The developments which followed can only be described, as I have indicated, as a big fuss over a trifle.

The Acting Prosecutor General, perhaps determined to guard his territory of power, decided that the judge, myself, should recuse myself from the case.

It is very important to point out, that, recusals of a judicial officer are an everyday occurrence and occur as part of the judicial function.

But, how did the prosecution go about it?

Events of 14 February 2017

In the morning of 14 February 2017, my administrative head, the Judge President, called me to his chambers.

He handed me a copy of a letter addressed to him by the Acting Prosecutor General. It was copied to the Registrar and to the accused's legal practitioners.

The Judge President advised, that, he was passing on the letter to me because, as the presiding judge, I had to singularly decide on the issues raised and that his passing over the letter to me was all that he considered proper to do.

For the avoidance of doubt, the contents of the letter was as follows (and it is reproduced here because it was not a confidential communication as will be apparent):

“Monday, 13 February 2017

The accused was indicted for trial commencing on 13 February 2017. Prosecution counsel and the accused's instructing legal practitioners appeared in chambers before the learned Justice T H Chitapi, the judge assigned the matter, for a courtesy, and to inform him as to the readiness of the parties to proceed.

The learned judge was informed that the State was ready to proceed and had its witnesses present to testify but had not been furnished with the accused's Defence Outline despite the fact that the accused was indeed already for trial on 16 November 2016.

The accused's instructing legal practitioner informed the learned judge that no Defence Outline had been prepared but the defence intended to make an application and was awaiting the arrival of instructed counsel, Mr Thabani Mpofu.

The judge adjourned the matter to 11:15 hours.

Shortly before the matter was called in court, the defence produced a document which 'purported' to be an application.

'Purported' because the document does not in the least comply with the rules of court regarding form, substance, and manner of service of court applications.

Furthermore, the face of the so called 'Application for Constitutional Relief” shows that it was a page prepared for a certain Martin Dinha.

The said Dinha's particulars are scratched out in pen and substituted with Johannes Tomana.

Attached to it is an affidavit of the accused and a purported draft order also drawn presumably from an application filed in respect of the said Marin Dinha whose particulars are scratched out and the accused's particulars handwritten in.

After hearing submissions, the court ordered the State to file a written response to the application by 11:45 on 14 February 2017.

During the proceedings, captured on tape, the learned judge repeatedly referred to the accused as 'Prosecutor General.'

I am of opinion that the learned judge has improperly conducted himself and the proceedings.

First of all, Mr Tomana was suspended by H.E. The President of the Republic of Zimbabwe, Cde Robert Gabriel Mugabe on 7 July 2016. Simultaneously, the President appointed and swore in Advocate Ray H Goba as Acting Prosecutor General.

It follows that Mr Tomana, the accused, is not in office and accordingly not 'the Prosecutor General.' In other words, the office/position is occupied by Adv Ray H Goba.

Accordingly, any reference to the accused as Prosecutor General is grossly improper and fails to distinguish between the person and the Constitutional office.

The learned judge's conduct may reasonably be perceived as improper deference to the accused likely to taint his judgment in dealing with the matter.

It is common knowledge that the learned judge previously served on the Board of the National Prosecuting Authority under the chairmanship of the accused before his appointment to the bench.

This may help explain the learned judge's conduct during the hearing; the improper deference to the accused; and improper indulgencies granted to him.

For these reasons, I fear that the proper administration of justice is likely to be prejudiced if Justice Chitapi is to continue presiding over the matter. The public's perception of justice is likely to be diminished in regard this prosecution.

I accordingly, and with the greatest respect to the learned judge, submit that he is singularly unqualified to preside over this matter.

I would wish my concerns to be brought confidentially to his attention in order for him to apply his mind to the matter, to make an appropriate decision, and avoid a formal application in court.

The Honourable Judge President…,.

Advocate Ray H. Goba, Acting Prosecutor General.”...,.

The Acting Prosecutor General committed a cardinal error of requesting the Judge President to deal with the matter confidentially in bringing his concerns to my attention.

Whilst the Acting Prosecutor General may have been well-meaning, his suggestion would have set a very dangerous precedent.

The case had been called.

Orders had been made in court, including that the prosecution team files its response to the defence application by 2:15pm of the following day.

Justice dispensation should not be done behind closed doors.

To have expected the Judge President to have gone along with the Acting Prosecutor General's suggestion, to discuss issues of recusal in private, was clearly an offside move by the Acting Prosecutor General.

The Acting Prosecutor General is strongly warned to desist from such unprofessional and unethical conduct in future.

It was highly irregular of the Acting Prosecutor General to address the Judge President in the manner that he did, concerning the conduct of a judge sitting over a matter - without even having the courtesy to copy the letter to the judge concerned.

As a senior advocate, and Chief Law Officer of the State in criminal matters, he should have led by example.

The Acting Prosecutor General, and his team, should simply have invited the defence team to my chambers and discussed the prosecution concerns, as stated in the letter, if the aim was to avoid making a formal application for recusal in open court.

I earlier indicated that l would deal with how the letter found itself in the public domain.

The letter was copied to the Registrar of the High Court of Zimbabwe and to the defence counsel's law firm. The transcribed record will show, that, when the court hearing resumed, on 14 February 2017, the defence team raised the issue of the letter and its impropriety.

Advocate Mpofu submitted, that, a copy of the letter had been handed or served on the defence team by the prosecution team.

The defence took exception to the letter, which they considered as impugning the integrity of the judicial process, vexatious, and unethical.

Advocate Mpofu submitted, that, it was proper to prepare a citation directing the author of the letter to appear before the court and purge his contempt of the court process.

He also submitted, that, the Acting Prosecutor General, had, in the process of vilifying the judge, incited his subordinates, the prosecuting team, not to comply with the court directive to file a response to the application by the defense counsel.

He noted, that, the application only comprised two pages and there was nothing complicated about the application as would have made it impossible for the prosecution team to prepare a response as undertaken by it.

He attributed the default in filing the response to open and calculated defiance of the authority of the court on the part of the Acting Prosecutor General, who, instead of getting his team to respond to the application, decided to devote his energy and time to writing a scandalous letter.

The lead prosecutor, Mr Chigwinyiso, submitted, that, his team realized that it had allocated itself too little time to research and prepare a response. He submitted, that, his team had covered substantial ground and would require “a day or so” to make a full response.

He applied for the matter to be further postponed for a “day or two in order to file a response to the application made 'yesterday' and then to make a proper application as regards the issues raised by the Acting Prosecutor General.”

The lead prosecutor submitted, that, the State response would be ready and filed by 17 February 2017.

With respect to the letter by the Acting Prosecutor General, the prosecution team could not speak to it or motivate it.

To its credit, the prosecution team, through the lead prosecutor, submitted, that, upon reflection, their boss had misfired by writing a letter to the Judge President concerning a matter before the court, and, moreso, without copying the letter to the presiding judge.

In a lighter moment, I requested the lead prosecutor to look at the dock and tell the court how he would address the accused person.

He gave a witty response. He said:

“I will answer the question from my Lord from a person who is dealing with soccer.

A player who has been red carded still remains a football player. The Prosecutor General is still Prosecutor-General whether suspended or not until he is removed from office.”

He agreed that Advocate Ray Goba was Acting Prosecutor General, discharging the duties of the Prosecutor General, and that the Prosecutor-General was the accused person before the court who however was on suspension.

Mr Chigwinyiso then submitted further, that, the Acting Prosecutor General, as the author of the letter, was best placed to motivate it.

The court then postponed the matter, at the instance of the prosecution team, to the next day, 15 February 2017.

The prosecuting team undertook that it would have filed a formal application for my recusal by 11:15am and the Acting Prosecutor General would appear with the team at 2:15pm whereat he would motivate or explain his letter and deal with the application for my recusal.

I indicated to the prosecution team, that, if it faced time constraints, the application could still be made orally because there was no Rule which prescribed that an application for recusal of the judge be reduced to writing.

Advocate Mpofu submitted, that, the defence wanted the Acting Prosecuting General to be available.

The court did not consider it necessary to prepare a subpoena or citation for the Acting Prosecutor General to appear before the court.

The court considered, that, the Acting Prosecutor General was an officer of the court and a legal practitioner duly sworn, admitted, and registered as such by the High Court: thus, when required by the court to attend, in relation to a matter which he has brought before court, the Acting Prosecutor General, in deference to the court, and the duties of his office, did not require to be compelled by subpoena to appear before the court at its request or direction.

Mr Chingwinyiso undertook to advise the Acting Prosecutor General to appear before the Court on the following day.

The matter was rolled over to the following day, 16 February 2017.

On 16 February 2017, the prosecuting team appeared in court - without the Acting Prosecutor General.

No application was made for him to be excused from attendance nor to explain why he was not in attendance.

The lead prosecutor submitted, that, he relayed the message to the Acting Prosecutor General, that he was required at court to explain the contents of his letter. The Acting Prosecutor General reportedly instructed his prosecuting team to tell the court that his explanation was contained in his affidavit supporting the written application for recusal.

Mr Chingwinyiso further indicated, that, he had spoken to the Acting Prosecutor-General in the morning and he had indicated that he was going to attend.

As it was now 2:53pm, the lead prosecutor indicated that he did not know whether the Acting Prosecutor General would pitch up or not.

Mr Mpofu submitted, that, the Acting Prosecutor General's conduct showed that he had no respect for the court because he deliberately refrained from presenting himself before the court despite the court's directive....,.

He submitted, that, it was only fair that the Acting Prosecutor General be given ten (10) minutes to present himself before the court, failing which the court should issue a citation for him to attend and explain his conduct.

The court, however, ruled that since the Acting Prosecutor General had been given an opportunity to appear before the court and explain his letter, and motivate the recusal, but deliberately spurned the opportunity, he only had himself to blame if an adverse order or finding was made against him.

There can be no doubt, that, the Acting Prosecutor General displayed a recalcitrant attitude reminiscent of a stubborn unwillingness to defer to the court's authority.

The court pointed out to the prosecuting team, that, it was the first time in its experience that the Government Chief Prosecutor, and legal practitioner, exhibited such a belligerent and hostile attitude towards the authority of the court.

The Acting Prosecutor General discharges the duties of the Prosecutor General. The office of Prosecutor General is a Constitutional appointment. Courts are also created by the Constitution.

This court, in particular, is a superior court with inherent and unlimited jurisdiction over all matters, civil or criminal save as excepted by the Constitution.

By adopting a hostile and stubborn attitude towards the authority of this court and/or a judge of this court, in the discharge of his Constitutional functions as such, the Acting Prosecutor General's conduct has the potential to create a Constitutional crisis where one Constitutional body undermines the authority of the other.

The rule of law can only be threatened by such conduct.

The conduct exhibited by the Acting Prosecutor General, of creating a stand-off between the office of the Prosecutor-General and this court, as happened in this case, where he refused to attend when called by the court, must be deprecated and censured.

The Prosecutor General, admittedly, and in terms of section 260 of the Constitution, is independent and not subject to the direction or control of anyone.

He should not, however, get carried away, because, the independence of that office is subject to the Constitution.

Since this court has original and inherent jurisdiction, which extends to all persons and matters, the Prosecutor General, unlike the President, who enjoys immunity whilst in office, in terms of section 98 of the Constitution, must and is expected to defer to the authority of the court and is not above the law.

Whilst the criticism of the Acting Prosecutor General's conduct may appear to be hard-hitting; he only has himself to blame, because, he was given the opportunity to present himself before the court and explain his conduct, in writing a letter behind a judge's back in an apparent attack on the judge and the court's integrity, and he deliberately refrained from doing so.

Legal practitioners, like the Acting Prosecutor-General, are senior officials of this court and should lead by example.

Anything short of impeccable conduct on the part of the Acting Prosecutor General, the Prosecutor General, and members of the National Prosecuting Authority, as with any other legal practitioner of this court, is a recipe for the breakdown of the due dispensation of justice and rule of law.

CC02-23 : INNOCENT GONESE vs PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and PRESIDENT OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

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.

FACTUAL BACKGROUND

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....,.

APPLICANT'S SUBMISSIONS

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.

RESPONDENTS CASE BEFORE THIS COURT

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.

AMICUS CURIAE'S SUBMISSIONS

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....,.

ISSUE ARISING FOR DETERMINATION

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.

WHETHER THE CONSTITUTIONAL AMENDMENT BILL (NO. 1) 2017 HAD BECOME AN ACT OF PARLIAMENT WHEN PARLIAMENT WAS DISSOLVED

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.

THE IMPORT OF THE ORDER IN CC04-20

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.

FINALITY OF CC04-20

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.

WHETHER THE APPLICANT'S RIGHTS TO EQUAL PROTECTION AND BENEFIT OF THE LAW WERE INFRINGED

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.”...,.

DISPOSITION

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.

CC07-16 : AMOS MAKANI and OTHERS vs ARUNDEL SCHOOL and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

The four applicants are the fathers and guardians of their respective minor daughters, all four of whom are pupils at Arundel School, a private girls school situated in Harare.

The first and second respondents are the Trustees and Headmistress of the School.

The third respondent is the Minister of Primary and Secondary Education, cited in his official capacity, and the fourth respondent is the Attorney-General, also cited in his official capacity.

The applicants seek various declarators and consequential relief in respect of the alleged violation of their daughters constitutional rights. They also seek an order for costs against the first and second respondents on a legal practitioner and client scale.

The first and second respondents are opposed to the application and aver that it be dismissed with costs.

The third and fourth respondents have indicated that they will abide by the Court's decision.

The Background

Before 2015, the long-established practice at the School was to commence the day with prayers in the School chapel. Pupils were free to attend if they so wished and a separate room was set aside for those of other faiths who did not attend chapel on religious grounds. This inter-denominational position was confirmed by the School's website on the internet.

The applicants and their daughters are all practising Jehovah's Witnesses. Their beliefs are not similar to those of other Christian denominations.

Upon application to the School for the admission of their daughters, each of the applicants completed a standard application form in which they indicated that they were Jehovah's Witnesses. Their daughters were duly accepted for admission.

At the beginning of 2015, a new Headmistress was appointed to run the School.

She sought to introduce compulsory chapel attendance for all pupils at the School in order to reinforce its collegiality. The applicants wrote several letters to the Headmistress as well as the School's lawyers to register their complaints. On 17 March 2015, after taking legal advice, the Headmistress wrote to the applicants insisting that their daughters were required to attend chapel and that, if they failed to comply, they would be deemed to have been voluntarily withdrawn and removed from the School.

On 19 March 2015, after the girls refused to attend chapel and surrendered their books, they were told to go home.

The applicants then filed an urgent application to the High Court, in Case No.2717/15. Following a consent order granted on 27 March 2015, the girls were allowed to continue to attend the School, without being compelled to attend chapel, pending the determination of the present application.

The applicants aver, that, freedom of conscience includes the right to practice and propagate one's religion as well as the right not to be compelled to subscribe to any religion.

In this respect, the actions of the Headmistress violate their daughters freedom of conscience and their right to protection against discrimination on the ground of religion.

Moreover, although any person is entitled to establish and maintain an independent educational institution, he or she cannot discriminate in the manner in which the institution is administered. Thus, the conduct of the Headmistress also violates their daughters right to education.

The applicants, accordingly, seek declarators that the respondents actions are in violation of their daughters freedom of conscience and religion, right to protection against discrimination, and right to education.

They also seek an order precluding the respondents from refusing the admission of their daughters to Arundel School on the basis of their religious beliefs and failure to attend chapel.

On behalf of the School, the Headmistress relies upon the standard enrolment form signed by the applicants upon the admission of their daughters into the School.

She avers, that, this agreement, which constitutes a binding contract, expressly provides, that, any latitude from chapel attendance is at her sole discretion and that her decision in that regard is final and binding.

The agreement also provides, that, any changes to the School rules must be observed and followed by the signatory parents and their daughters.

One of her functions is to articulate the values of the School, and, morning chapel is the only time when pupils come together in an environment most conducive for the values and ethos of the School to be properly impacted upon them.

It is not compulsory for any pupil to participate in any activity, such as singing or praying, or to abandon her beliefs during chapel. What is compulsory is that all pupils attend and evince respectful behaviour in chapel.

The applicants were not forced to enrol their daughters at the School.

They should respect the rights of the School's founding members who established an educational institution that conforms with and pursues their own values and beliefs. The School authority is constitutionally entitled to establish and maintain the School and impose reasonable rules to be followed at the School. It should not be precluded from pursuing its religious beliefs and insisting on anyone who joins the School to respect its views.

Such policy is reasonable and those who agree to join the School, despite their religious views, must be taken to have necessarily waived their own constitutional rights.

For the sake of completeness, it is necessary to set out the relevant provisions of the standard application form of admission to the School.

Upon signature, each of the applicants acknowledged and understood that his daughter had been accepted for entry as a day student at the School on the following express terms and conditions:

“4. That, the School's rules and regulations, as amended from time to time, shall bind and be observed by my daughter, and, insofar as they concern me, also by me. I further accept, that, by signing this enrolment contract I will be bound by the Arundel Parents Association constitution, which is available to me on request.

5. That, the School is founded on Christian principles, and all pupils are expected to comply with the rules and routines thus implied. No exemption from any part of the curriculum will be considered on religious grounds. Any latitude concerning Chapel attendance, holy days, special meal requirements, dress codes etc. will be at the sole discretion of the Head, whose decision will be accepted as final and binding on my daughter.”

Relevant Constitutional and Statutory Provisions

Section 2 of the Constitution re-affirms the supremacy of the Constitution in terms that are significantly wider and more inclusive than those embodied in its precursor in the former Constitution, as follows:

“(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions and agencies of government at every level, and must be fulfilled by them.”

Also relevant for present purposes is section 47 of the Constitution which recognises the existence of rights other than those contained in the Declaration of Rights:

“This Chapter does not preclude the existence of other rights and freedoms that may be recognised or conferred by law, to the extent that they are consistent with this Constitution.”

As I have already indicated, the specific relief sought by the applicants relates to the alleged violation of their daughters freedom of conscience and religion, right to protection against discrimination, and right to education, as enshrined in sections 60, 56 and 75 of the Constitution. These sections, in their relevant portions, provide as follows:

“56 Equality and Non-discrimination

(1) All persons are equal before the law and have the right to equal protection and benefit of the law.

(2)….,.

(3) Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock.

(4) A person is treated in a discriminatory manner, for the purpose of subsection (3), if —

(a) They are subjected, directly or indirectly, to a condition, restriction or disability to which other people are not subjected; or

(b) Other people are accorded, directly or indirectly, a privilege or advantage which they are not accorded.

(5) Discrimination on any of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair, reasonable and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.

(6)…,.”

“60 Freedom of Conscience

(1) Every person has the right to freedom of conscience, which includes —

(a) Freedom of thought, opinion, religion or belief; and

(b) Freedom to practice and propagate and give expression to their thought, opinion, religion or belief, whether in public or in private and whether alone or together with others.

(2) No person may be compelled to take an oath that is contrary to their religion or belief or to take an oath in a manner that is contrary to their religion or belief.

(3) Parents and guardians of minor children have the right to determine, in accordance with their beliefs, the moral and religious upbringing of their children, provided they do not prejudice the rights to which their children are entitled under this Constitution, including their rights to education, health, safety, and welfare.

(4) Any religious community may establish institutions where religious instruction may be given, even if the institution receives a subsidy or other financial assistance from the State.”

“75 Right to Education

(1) Every citizen and permanent resident of Zimbabwe has a right to —

(a) A basic State-funded education, including adult basic education; and

(b) Further education, which the State, through reasonable legislative and other measures, must make progressively available and accessible.

(2) Every person has the right to establish and maintain, at their own expense, independent educational institutions of reasonable standards, provided they do not discriminate on any ground prohibited by this Constitution.

(3) A law may provide for the registration of educational institutions referred to in subsection (2) and for the closing of any such institutions that do not meet reasonable standards prescribed for registration.

(4) The State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of the right set out in subsection (1).”...,.

In support of their contention, that, their daughters right to education has been violated by the School, the applicants also rely upon section 4 of the Education Act [Chapter 25:04] which provides as follows:

“(1) Notwithstanding anything to the contrary contained in any other enactment, but subject to this Act, every child in Zimbabwe shall have the right to school education.

(2) Subject to subsection (5), no child in Zimbabwe shall —

(a) Be refused admission to any school; or

(b) Be discriminated against by the imposition of onerous terms and conditions in regard to his admission to any school;
on the grounds of his race, tribe, place of origin, national or ethnic origin, political opinions, colour, creed or gender.

(3)…,.

(4) Any person who contravenes subsection (2) shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

(5) It shall be a defence in any criminal proceedings for an offence under subsection (2) for the accused person to show, that, though he committed the act alleged against him —

(a) He committed the act on the grounds of the creed of the child against whom the act was committed, but he did so because the school concerned is controlled by a bona fide religious organization and members of that religious organization or adherents of a particular religious belief are accorded preference in admission to that school; or

(b) He committed the act on the grounds of the gender of the child against whom the act was committed, but...,.”

Lastly, but very importantly, there is section 86 of the Constitution which permits the limitation of fundamental rights in the following circumstances:

“(1) The fundamental rights and freedoms set out in this Chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons.

(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including —

(a) The nature of the right or freedom concerned;

(b) The purpose of the limitation, in particular, whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;

(c) The nature and extent of the limitation;

(d) The need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others;

(e) The relationship between the limitation and its purpose, in particular, whether it imposes greater restrictions on the right or freedom concerned than are necessary to achieve its purpose; and

(f) Whether there are any less restrictive means of achieving the purpose of the limitation.

(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them —

(a) The right to life, except to the extent specified in section 48;

(b) The right to human dignity;

(c) The right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment;

(d) The right not to be placed in slavery or servitude;

(e) The right to a fair trial;

(f) The right to obtain an order of habeas corpus as provided in section 50(7)(a).”

As appears from sub-section (3) of section 86 of the Constitution, none of the rights allegedly violated in casu falls into the category of inviolable rights enumerated in that subsection.

Accordingly, in the event that the applicants are able to establish any violation of their rights, it will be necessary to measure such prima facie violation as against the rights and freedoms of others, in terms of subsection (1), and within the context of the permissible derogations contemplated in sub section (2).

Right to Education

The gist of the appellants argument, as I understand it, is that the Headmistress of the School, through her ultimatum to attend chapel, effectively expelled their daughters from the School. In so doing, she violated their right to education in terms of section 75 of the Constitution, as read with section 4 of the Education Act.

In this respect, counsel for the applicants relies, in particular, on section 4(2) of the Education Act which prohibits discrimination on the grounds of, inter alia, race, tribe, creed or gender, with regard to the admission of any child to any school.

He argues, that, this provision extends to contracts of admission, and, by necessary implication, to the discriminatory imposition of onerous conditions after admission. Admission, in this sense, is not limited to entry into the school but also includes the right to remain in the school for the duration of one's studies.

The gravity of such discriminatory conduct is demonstrated by the fact, that, it is criminalised by section 4(4) of the Education Act.

In the instant case, the applicants daughters, as adherents of the Jehovah's Witness faith, are discriminated against by having to attend the observance of a contrary faith that they do not adhere to, unlike the majority of the girls at the School who belong to the Anglican faith. This prohibition against discrimination is reinforced by section 75(2) of the Constitution which prohibits independent educational institutions from practising such discrimination.

In my view, this argument is fundamentally flawed in relation to the scope of section 4 of the Education Act and the notion of discrimination prohibited by that section:

(i) Firstly, what section 4(2) of the Education Act prohibits is the refusal of, or, discrimination against any child in regard to his admission to any school on the grounds of his creed, etc.

The plain wording of this subsection is silent as to any discrimination that might occur after the child has been admitted to the school.

It would, in my view, be improper to extend the express language of the provision to cover conduct that is omitted, particularly where its contravention imports criminal sanction in terms of subsection (4). This view is fortified by paragraph (a) of sub-section (5) which affords the accused person a defence against a criminal charge for an offence under sub section (2) with specific reference to admission to the school.

In short, the prohibition envisaged by section 4(2) of the Education Act does not extend to any allegedly discriminatory conduct committed after admission to the school.

(ii) Secondly, the defence contemplated by paragraph (a) of subsection (5) is also very specific. It enables the accused person to justify his refusal to admit or discriminate on the ground of creed on the basis, that, the school concerned is controlled by a religious organisation and that members of that religious organisation or adherents of a particular religious belief are accorded preference in admission to that school.

In effect, this provision expressly allows discrimination, in admission to the school, on the ground of creed or religion in the circumstances prescribed.

Of course, this does not mean that a child who is deliberately discriminated against on the ground of religion, after his or her admission to the school, is left without any legal recourse or remedy.

Depending on the circumstances of the case, he or she will always be entitled to invoke the constitutional rights to freedom of religion and protection from discrimination in order to challenge and counter any discriminatory conduct in violation of those rights.

In my view, section 4 of the Education Act, read in its entirety, does not give any succour to the applicants cause. On the contrary, it counters and undermines their position vis-a-vis the right to education and freedom from discrimination on the ground of religion in the enjoyment of that right.

Nor can the applicants derive any sustenance from the right to education enshrined in section 75 of the Constitution.

Subsections (1) and (4) of section 75 of the Constitution make it abundantly clear, that, the right conferred is a right to education funded and availed by the State on a gradual and progressive basis. These subsections do not confer upon citizens and permanent residents any constitutional right to private education, and they cannot conceivably do so on any logical or practical footing.

Subsections (2) and (3) of section 75 of the Constitution deal separately with private or independent educational institutions.

They permit the establishment of such institutions, subject to such State supervision and control as may be necessary to ensure that they meet prescribed reasonable standards. The right to establish and maintain an independent institution, guaranteed by subsection (2), must be construed not only in the physical and structural sense but to include as well the establishment and maintenance of educational and ethical standards.

Conversely, the provision does not envisage any right to flout the rules and regulations designed by the institution to safeguard its educational and ethical standards.

The only qualification to the rights of an independent institution is that it must not discriminate on any ground prohibited by the Constitution.

This is the aspect that I now turn to address:

Protection against Discrimination

The principal submission made on behalf of the applicants, in relation to discrimination, is that the change of policy on chapel attendance implemented by the Headmistress is not neutral. It is pointedly directed against the non-Anglican pupils who were previously exempted from attendance. As such, it is clearly discriminatory on the ground of religious belief contrary to section 56(3) of the Constitution. Moreover, it has not been shown that such discrimination is fair, reasonable and justifiable in a democratic society as contemplated by section 56(5) of the Constitution.

Before adverting to the democratic fairness, reasonableness or justifiability of the change of policy by the School, it is first necessary to establish whether it is discriminatory, within the meaning of section 56(3) as expatiated by section 56(4) of the Constitution.

There are two aspects to consider in this regard:

(i) Firstly, the stipulations incorporated in the standard form of admission; and

(ii) Secondly, the application of the policy after admission.

With respect to the first aspect, the School's policy, on admission, is that all pupils are expected to comply with the Christian rules and routines of the School and that no exemption from any part of the curriculum will be considered on religious grounds.

Given that this contractually agreed stipulation is intended to apply to all pupils without distinction, I do not think that it is necessarily discriminatory on the ground of religion. Every parent who agrees to this condition does so willingly and actively chooses to abide by its implications.

Thus, as I have stated earlier, in relation to the right to education, it cannot be said that this mutually agreed condition per se amounts to discriminatory treatment at the point of admission to the School.

Insofar as concerns the stage after admission, I am inclined to agree with counsel for the respondents, that, the previous practice of the School, in exempting pupils from attending chapel on religious grounds might be deemed to have been a form of reverse discrimination in that they were indirectly accorded a privilege that pupils of the Anglican faith were not being accorded.

As for the present policy, of insisting on chapel attendance by all pupils, I am not persuaded that the applicants daughters are being treated differently from the other pupils on account of their religion.

While I fully concur with the liberal and purposive approach to constitutional interpretation, I do not think it permissible to amplify or expand the clear language of the Constitution to encompass rights and obligations not provided for by the legislature either expressly or by necessary implication.

Having regard to the test of what constitutes discriminatory treatment, as articulated in section 56(4) of the Constitution, I do not perceive that the applicants daughters are being subjected, directly or indirectly, to a condition, restriction, or disability to which other pupils are not subjected or that other pupils are being accorded, directly or indirectly, a privilege or advantage which they are not accorded.

On the contrary, it seems to me, that, they are being treated equally and in the same manner as other pupils. Indeed, it is not inconceivable that even pupils of the Anglican faith might object to mandatory chapel attendance for reasons unconnected with their faith.

In construing section 56 of the Constitution as a whole, it is necessary to emphasize, that, discrimination is not defined by reference to the affected individual or group standing alone. Rather, it is defined by reference to the treatment that individual or group is subjected to as compared with the treatment accorded to other persons or groups.

Where there is no such comparable differentiation, there can be no discrimination proscribed by the Constitution.

In the premises, I am satisfied, that, the applicants have failed to demonstrate any plausible basis for invoking the right not to be treated in a discriminatory manner in impugning the School's policy of compulsory chapel attendance by all pupils.

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O.
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

This is an appeal against the whole judgment of the High Court (the court a quo) in which it dismissed the appellant's urgent chamber application wherein she sought an interdict to prevent the first respondent (the President) from establishing a Tribunal in terms of section 187(3) of the Constitution of ...

FACTUAL BACKGROUND

The appellant is a former judge of the High Court of Zimbabwe having been removed from office by the President on the recommendations of a Tribunal he set up.

What led to the intended establishment of the Tribunal were complaints relating to the appellant's performance as a judge.

In particular, the complaints related to her work output, which was deemed unsatisfactory and below the expected standard. One of the complaints was that the appellant issued a review judgment in respect of criminal proceedings without having properly perused the record of proceedings. As a consequence, she ordered the release, from prison, of a person who had previous convictions which militated against his release.

The position of the fourth respondent, Judicial Service Commission (JSC), was that the appellant's conduct, inter alia, amounted to gross misconduct and/or gross incompetence warranting the referral of the matter to the President in terms of section 187(3) of the Constitution.

It is common cause, that, by letter dated 15 September 2020, the appellant was advised by the Judicial Service Commission (JSC) that she was under investigation for impeachable acts of misconduct.

In response, the appellant's erstwhile legal practitioners, in a letter dated 30 September 2020, wrote back to the Judicial Service Commission (JSC) indicating that the appellant was not obliged to respond to that matter. Their view was that the JSC had no legal authority to deal with the complaints raised against the appellant and that the second respondent (Chief Justice) had no authority to direct the JSC to attend to any complaints against a sitting judge of the High Court.

Further, the letter highlighted, that, in any event, it was premature for the Judicial Service Commission (JSC) to invoke section 187(3) of the Constitution before compliance with the provisions of the Judicial Service (Code of Ethics) Regulations SI107 of 2012 (Code of Ethics).

Consequently, the Judicial Service Commission (JSC) resolved that the question of the appellant's removal from office ought to be investigated by a Tribunal appointed to inquire into the matter in terms of section 187(3) of the Constitution.

It advised the appellant of this resolution by letter dated 12 October 2020.

A day after receipt of the letter, the appellant, through her erstwhile legal practitioners, filed an urgent chamber application under case number HC6128/20 which she subsequently withdrew.

On 26 October 2020, the appellant, through her current legal practitioners, filed yet another application through the chamber book, seeking the Provisional Order which is the subject matter of this appeal. The Provisional Order sought reads as follows:

“INTERIM RELIEF GRANTED

IT IS ORDERED THAT:

1. Pending the final determination of the legality of the fourth respondent's decision to advise the first respondent to establish a Tribunal in the absence of due process, the first respondent be is hereby interdicted from setting up a Tribunal to investigate the question of removing the applicant from office in terms of section 187(3) of the Constitution.

2. In the event that a Tribunal referred to here above is already set up by the first respondent to investigate the applicant's conduct, then, the Tribunal's proceedings be stayed until the determination of the legality of the fourth respondent's decision to advise the first respondent to establish a Tribunal.

TERMS OF THE FINAL ORDER SOUGHT

That the first, second, third, fourth, and fifth respondents show cause to this Honourable Court why a final order should not be granted in the following terms:

1. The fourth respondent's decision advise to the first respondent to set up a Tribunal to inquire into the question of whether the applicant should be removed as a judge be and is hereby declared unlawful and set aside (sic).

2. It is hereby declared that any disciplinary action against the applicant must be done in compliance with Statutory Instrument 107 of 2012 being the Judicial Services (Code of Ethics) Regulations, 2012 as read with the Constitution of Zimbabwe.”

PROCEEDINGS IN THE COURT A QUO

At the commencement of the proceedings, the fourth respondent (Judicial Service Commission) raised five points in limine which the second and third respondents (Chief Justice and Judge President of the High Court) associated themselves with.

The appellant also raised a point in limine.

On the merits, the appellant contended that she managed to satisfy all the pre-requisites for the granting of an interim interdict. She argued that a proper construction of section 187(3) and section 190(4) of the Constitution, as well as Part III of the Judicial Service (Code of Ethics) Regulations, S.I.107 of 2012 (Code of Ethics) reveals that a judge accused of any act of misconduct is entitled to be subjected to the provisions of the latter enactment before any contemplated referral to the President can be done.

The appellant submitted, that, the interpretation given by the Judicial Service Commission (JSC) to section 187(3) of the Constitution, to the effect that it is empowered to refer such a matter directly to the President without resorting first to the Judicial Service (Code of Ethics) Regulations, SI107 of 2012 (Code of Ethics) will have the effect, inter alia, of not only eroding the independence of the judiciary but also negates the very notion of security of tenure of the judges, deprives the appellant of her right to administrative justice as enshrined in section 68 of the Constitution, results in the negation of her right to protection against unfair discrimination and equal protection of the law in that other judges accused of misconduct were subjected to the Code of Ethics, and, finally that the procedure adopted by the JSC attenuates the principle of certainty in that whereas some judges are first subjected to the Judicial Service (Code of Ethics) Regulations, others, like herself, do not get to enjoy that “two- rung” process.

The appellant further contended, that, the Judicial Service (Code of Ethics) Regulations, SI 107 of 2012 (Code of Ethics) was a direct consequence of section 190(4) of the Constitution.

She also contended, that, the gravity or nature of the alleged infraction was immaterial and irrelevant in so far as the procedure to be followed is concerned.

In her view, the provisions of the Judicial Service (Code of Ethics) Regulations (Code of Ethics) are prescriptive and no departure therefrom is permissible. No distinction is drawn, in terms of the legislation and as far as procedure is concerned, between the disciplinary action against judges in terms of the Code of Ethics vis a vis their removal from office as the latter is a species of the former.

The Judicial Service Commission (JSC), per contra, contended that it did no more than what section 187(3) of the Constitution entitled it to do.

It disputed the interpretation given to the said provision by the appellant and argued that impeachable conduct referred to the President does not have to be preceded by proceedings under the Judicial Service (Code of Ethics) Regulations, S.I. 107 of 2012 (Code of Ethics).

Furthermore, the respondents submitted that it was clear ex facie the record that the appellant was potentially guilty of gross misconduct, or, in the alternative, gross incompetence, and, as such, the existence of a prima facie case against her meant that the provisions of section 187(1)(a) and (b) as read with section 187(3) of the Constitution had been properly triggered by the Judicial Service Commission (JSC).

It was their submission, that, the aforementioned sections relate to impeachable conduct and thus it had a basis to refer the matter to the President.

DETERMINATION BY THE COURT A QUO

The court a quo, in a well-reasoned judgment, dismissed all the preliminary points raised by the Judicial Service Commission (JSC) and the appellant.

None of the parties appealed against the court a quo's dismissal of the points in limine.

It will therefore, not be necessary, for the determination of this matter, to relate to the findings of the court a quo on the preliminary points.

On the merits, the court a quo held that in so far as the procedure for dealing with judges accused of acts of misconduct is concerned, section 187(3) of the Constitution and Part III of the Judicial Service (Code of Ethics) Regulations (Code of Ethics) provide distinct dichotomous routes.

The court held, that, section 187 is principally aimed at investigating the suitability or otherwise of the imperiled judge in continuing to hold office in light of the alleged acts of misconduct and the Code of Ethics is mainly aimed at some other disciplinary measures short of removal from office.

It was the court's position, that, the applicability of the abovementioned provisions is a question that is dependent on the gravity of the offence.

It held that the use of the words “gross incompetence” and “gross misconduct” in section 187(3) of the Constitution, which words are absent in section 21 of the Code of Ethics, conveys the notion that it is reserved for indiscretions that are deemed serious. The court concluded, on this point, by finding that:

“The appellant's argument that no distinction can and should be drawn between 'disciplining' of judges and 'removal' of judges cannot be sustained because a reading of those sections clearly conveys such a distinction.”

The court also opined, that, the fact that the outcomes of the two procedures are different lends further credence to the existence of the dichotomy. Whereas, the outcome under section 187 of the Constitution is the possible removal of a judge from office, under the Code of Ethics, there are various possible outcomes.

The court a quo further held, that, if the procedure under the Code of Ethics was meant to be antecedent to the referral in terms of section 187(3) of the Constitution, then, either the Constitution or the Code of Ethics, or both, would have said so.

Sections 21, 24, 25, and 26 of the Code of Ethics make it clear that they are subject to the Constitution.

Further, the Sixth Preamble to the Code of Ethics clearly conveys the meaning that the Code of Ethics was intended to plug the lacuna obtaining before its promulgation, namely, that there was no formal complaints mechanism for conduct falling short of impeachable conduct.

The court also noted that subsection (3) of section 24 of the Code of Ethics makes it clear that nothing contained in it shall be construed as taking away or derogating from the powers bestowed upon a person to make a direct referral for impeachable conduct.

It further found, that, in any event, the Code of Ethics was promulgated in 2012, and, therefore, predates the current Constitution which came into effect a year later.

Concerning the allegations of bias, mala fides, and non-observance of the audi alteram partem rule levelled against the second, third, and fourth respondents (Chief Justice, Judge President of the High Court and the Judicial Service Commission) in handling her matter, the court a quo made a finding that the appellant rejected the invitation to respond to the complaints against her, and, thus, cannot claim that her right to be heard was violated.

To that end, the court a quo held that the appellant did not manage to establish a prima facie right let alone a clear one entitling her to be subjected to the Code of Ethics first before a referral as contemplated under section 187(3) of the Constitution.

In light of that, the court a quo held that it was not necessary to interrogate the remaining requirements for an interim interdict as the application before it did not establish a prima facie right.

In accordance with the above findings, the court a quo dismissed the application with costs.

Aggrieved by the decision of the court a quo, the appellant noted an appeal on the following grounds:

“1. The court a quo erred and misdirected itself in placing reliance on section 187(3) of the Constitution when the principle of subsidiarity required that reliance be on the Judicial Service (Code of Ethics) Regulations 2012 in taking any disciplinary measures against the appellant.

2. The court a quo erred and misdirected itself when it held that the Judicial Service (Code of Ethics) Regulations 2012 is aimed at some disciplinary measure other than the removal of a judge from office but also holding that the outcome of a disciplinary process instituted under the Judicial Service (Code of Ethics) Regulations, 2012 may result in a referral in terms of section 187(3) of the Constitution.

3. The court a quo erred and misdirected itself when it held that section 187(3) of the Constitution 2013 and Part III of the Judicial Service (Code of Ethics) Regulations 2012 provide for different procedures for dealing with the question of misconduct of a sitting judge of the High Court when such distinct procedures are not contained in the Constitution and the Judicial Service (Code of Ethics) Regulations 2012.

4. The court a quo erred and misdirected itself when it held that section 187(3) of the Constitution is reserved for transgressions that are deemed serious and that the Judicial Service (Code of Ethics) Regulations 2012 is reserved for minor transgression when such a distinction is not contained in either the Constitution, the Judicial Services Act, or the Judicial Service (Code of Ethics) Regulations 2012.”

She sought the following relief;

“1. That, the instant appeal succeeds with costs.

2. That, the judgment of the court a quo be set aside and the following be substituted in its place and stead;

'1. Pending the final determination of the legality of 4th respondent's decision to advise the 1st respondent to establish a tribunal in the absence of due process, the 1st respondent be and is hereby interdicted from setting up a Tribunal to investigate the question of removing the applicant from office in terms of section 187(3) of the Constitution.

2. In the event that a Tribunal referred to hereabove is already set up by the 1st respondent to investigate the applicant's conduct, then, the Tribunal's proceedings be stayed until the determination of the legality of the 4th respondent's decision to advise the 1st respondent to establish a tribunal.

3. That this matter be and is hereby remitted to the High Court for continuation of proceedings on the return date.'”

In the concluding paragraph in her heads of argument, the appellant's position was as follows:

“In light of the above, the appellant prays that the appeal succeeds with costs. However, in light of the fact that the interim relief sought has been overtaken by events, it is prayed that the judgment of the court a quo be set aside and the matter be remitted back to the court a quo for determination of the final relief sought.”…,.

SUBMISSIONS ON APPEAL

At the hearing of the appeal, the court asked counsel for the appellant to first address the court on the question whether the matter before the court had become moot first before addressing the merits of the matter.

The request was made on the basis, that, on the recommendation of the Judicial Service Commission (JSC), the President constituted a Tribunal to consider the removal of the appellant from office. The Tribunal has already conducted investigations and held an inquiry which consequently led to the removal of the appellant from the office of a judge.

Counsel for the appellant submitted, that, the issue of mootness did not arise in the present appeal.

It was her submission, that, when the President acted upon receipt of the referral, he did so in the belief that all due and proper processes had been followed as provided for in the Judicial Service (Code of Ethics) Regulations (Code of Ethics). If those processes were not followed, and the necessary transparent investigations carried out, the referral would have been invalid and everything that followed would be invalid. As such, the matter cannot be moot.

Notwithstanding her submissions that the matter was not moot, and despite the concession in the Heads of Argument, counsel for the appellant submitted that mootness is not a bar to hear a matter. The court retains a discretion to hear the merits of the appeal if it is in the interests of justice to do so. In casu, it was particularly important for the court to give guidelines for referral of a judge to the President.

For authority she relied on the case of Francis Bere v Judicial Service Commission & Ors SC01-22 where this Court proceeded to hear the appeal on the merits after having made a finding that the appeal was moot.

She further submitted, that, in that case, the provisions of the Code of Ethics had been followed. There had been participatory investigations by a panel of three judges which was set up in terms of the Code of Ethics.

On the merits, counsel for the appellant submitted, that, the Code of Ethics was not adhered to, therefore, all the proceedings thereafter were void.

It was her submission that in terms of the principle of subsidiarity, the appellant ought to have been subjected to the subsidiary legislation, therefore, the second respondent ought to have followed the procedure in the Code of Ethics before looking for recourse to the Constitution.

She further submitted, that, the second respondent did not conduct an investigation and failed to ensure that all processes before the referral were followed.

She also submitted, that, the court a quo erred in relying on the constitutional provisions on the investigative part of the proceedings. She maintained that if the legislature intended that there be two processes, one for serious infractions, and the other for non-serious infractions, it would have said so.

Finally, counsel made an application to amend the relief sought. She moved the court to grant an order declaring that the removal of the appellant from office was a nullity.

Per contra, counsel for the first and fifth respondents submitted that the relief the appellant was seeking in the instant appeal had been overtaken by events.

It was his submission that the Tribunal appointed by the President had duly carried out its Constitutional mandate resulting in the removal of the appellant from office. He further submitted that the appellant has taken those proceedings on review in the High Court. She has also filed an appeal in the Labour Court against the decision of the President to remove her from office.

Counsel for the second, third, and fourth respondents submitted that the test in respect of mootness is factual.

That the appellant was no longer a judge of the High Court is a fact. The question is not whether the matter is moot or not because on the facts the matter is moot.

The question should be whether this Court has a basis of exercising its discretion, in the interests of justice, to still hear the matter. He submitted that the following points militate against the exercise of that discretion.

(i) Firstly, the appellant voluntarily attended the Tribunal and fully participated in its enquiry. The Tribunal completed its work and the legal process of her removal from office has occurred. The appellant continues to seek legal remedies in other courts, namely, in the High Court and the Labour Court.

(ii) Secondly, when the appeal was filed, it was open to the appellant to seek an expedited hearing. He submitted that no effort was made to seek such an expedited hearing of the matter, as provided in the Rules, and secure the relief she seeks in her notice of appeal. As a result, this Court is unable to grant the relief sought by the appellant.

(iii) Thirdly, the Judicial Service Commission (JSC) advised the appellant of the complaints against her, provided her with the details of the complaints, and invited her to comment. The appellant, through her erstwhile legal practitioners, took a position that she had no obligation to address the complaint. As a result, the JSC resolved to refer the matter to the President in terms of section 187(3) of the Constitution. The actions of the JSC are unimpeachable. This Court cannot issue a declaratur nullifying the actions of the JSC. He concluded by submitting that there was nothing exceptional about this case warranting this Court exercising its discretion to hear this moot case.

On the merits, counsel submitted that the Code of Ethics makes it clear that it does not purport to supersede section 187(3) of the Constitution. The Code of Ethics recognises the supremacy of the Constitution, in particular sections 21, 24, 25 and 26 of the Code. He further submitted that the Code is limited to administrative complaints and impeachment processes are dealt with in terms of section 187(3) of the Constitution.

DETERMINATION OF THE QUESTION OF MOOTNESS

The appellant approached the court a quo in an urgent chamber application seeking the Provisional Order outlined above.

As is clear from the Provisional Order, the appellant sought, in the interim, an interdict preventing the President from setting up a Tribunal to investigate the removal of the appellant from office and in the event that it had already been set up, an order staying the proceedings of such Tribunal.

It is common cause that the Tribunal was set up, executed its mandate, and the appellant was removed from being a Judge of the High Court in terms of section 187(3) of the Constitution.

It is on this basis that the respondents take the position that the appeal before the court has been overtaken by events.

At this point in time, it is appropriate to deal with the doctrine of mootness as I believe it could be dispositive of this instant appeal.

THE LAW ON MOOTNESS

A matter is moot if the dispute becomes academic by reason of changed circumstances, thus making the jurisdiction of the court unsustainable.

The issue was comprehensively dealt with by the Constitutional Court in Thokozani Khupe & Anor v Parliament of Zimbabwe & Ors CC20-19…, where it held as follows:

“A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic, by reason of changed circumstances, the Court's jurisdiction ceases and the case becomes moot…,.

The question of mootness is an important issue that the Court must take into account when faced with a dispute between parties. It is incumbent upon the Court to determine whether an application before it still presents a live dispute as between the parties.

The question of mootness of a dispute has featured repeatedly in this and other jurisdictions.

The position of the law is that a court hearing a matter will not readily accept an invitation to adjudicate on issues which are of 'such a nature that the decision sought will have no practical effect or result.'”

The above principle was followed in MDC & Ors v Mashavira & Ors SC56-20…, where it was stated:

“…,. A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy between the parties….,. [I]f the dispute becomes academic by reason of changed circumstances, the case becomes moot and the jurisdiction of the court is no longer sustainable.”

In ZIMSEC v Mukomeka and Anor SC10-20…, PATEL JA, at pp6-7, set out a two–stage approach in determining whether or not an appeal is moot. The learned Judge cited the Supreme Court of Canada, in Borowski v Canada (Attorney General) [1989] 1 SCR 342, where it was held that:

“It is first necessary to determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic. If so, it is then necessary to decide if the court should exercise its discretion to hear the case.”

In respect of the second stage of an inquiry on mootness, PATEL JA held, at p7, that:

“The next step in the analysis is to decide whether or not the court should exercise its discretion to hear the case. In that respect, courts are guided by the rationale and policy considerations underlying the doctrine of mootness: Borowski's case, supra.

The overriding consideration is whether or not it is in the interests of justice to hear a moot case. The factors to be taken into account in that regard were lucidly enunciated by the Constitutional Court of South Africa in Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) at para 11:

'…,. Discretion must be exercised according to what the interests of justice require.

A pre-requisite for the exercise of the discretion is that any order which this Court may make will have some practical effect either on the parties or on others. Other factors that may be relevant will include the nature and extent of the practical effect that any possible order might have, the importance of the issue, its complexity, and the fullness or otherwise of the argument advanced.'”…,.

The doctrine is well developed in American law. A case is moot if it:

“…, seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has actually been asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical effect upon a then existing controversy.”

See Ex Parte Steel 162 Fed. 694, 701 (N.D.Ala. 1908).

Furthermore, a case is moot:

“If the parties are not adverse, if the controversy is hypothetical, or if the judgment of the court, for some other reason cannot operate to grant any actual relief…, and the court is without power to grant a decision.”

See Diamond, Sidney A. “Federal Jurisdiction to Decide Moot Cases” University of Pennsylvania Law Review Vol. 94…,.

Barron and Dienes Barron J (eds) Barron J and Dienes T (eds) Constitutional Law (West St Paul, Min 1995) put it succinctly when they observed that "a case or controversy requires present flesh and blood dispute that the courts can resolve."

In South African Jurisprudence, mootness is when a matter “no longer presents an existing or live controversy”: see National Coalition for Gay and Lesbian Equality & Ors v Minister of Home Affairs 2000 (2) SA 1 (CC)…,.

Section 16(2)(a)(i) of the South African Supreme Court Act provides as follows:

“(i) When, at the hearing of an appeal, the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone.”

It can be gathered from the above authorities that mootness essentially restricts the court's jurisdiction to hear or determine a matter, particularly if giving the judgment in that matter will produce no tangible result but merely an opinion. It is based on the notion that judicial resources ought to be utilised efficiently and not dedicated to advisory opinions.

However, the fact that a matter is moot is not an absolute bar for the court to decide an appeal where the interests of justice so require.

An analysis of decisions in which Zimbabwean Courts proceeded to determine matters despite the fact that they had become moot exposes the application of the foregoing principles.

In the case of Stevenson v Minister of Local Government & Ors 2002 (1) ZLR 498 (S)…, the court heard a matter that was moot for the purpose of determining the party liable to pay costs. SANDURA JA held as follows:

“In the circumstances, the learned judge in the court a quo should have dealt with the issues raised in the appellant's application.

However, it is pertinent to note that after the appeal in this matter had been noted, mayoral and council elections for Harare were held in March 2002. It follows, therefore, that the reason for the appellant's application has now fallen away.

Nevertheless, a determination of the issues raised in the application is essential for the purpose of determining which party should pay the costs of the application in the court a quo….,.”…,.

See also Francis Bere v Judicial Service Commission & Ors SC01-22.

The South African courts have attempted to outline factors to be considered when a court wishes to break through the veil of mootness to decide an appeal that is moot for justice's sake. In VINPRO NPC v The President of the Republic of South Africa & Ors (741/2021) [2021] ZAWHCHC 149 the court opined as follows:

“[50] Moreover, this Court has proffered further factors that ought to be considered when determining whether it is in the interests of justice to hear a moot matter. These include -

(a) Whether any order which it may make will have some practical effect either on the parties or on others;

(b) The nature and extent of the practical effect that any possible order might have;

(c) The importance of the issue;

(d) The complexity of the issue;

(e) The fullness or otherwise of the arguments advanced; and

(f) Resolving the disputes between different courts.”

In casu, under the first consideration in the test for mootness, it is apparent from the record that the appellant sought an order in the court a quo interdicting the President from establishing a Tribunal to investigate the question of removing her from office in terms of section 187(3) of the Constitution, and a stay of the Tribunal proceedings in the event that it had already been set up, pending the determination of the legality of the Judicial Service Commission's decision to advise the President to establish a Tribunal.

It is common cause that the Tribunal was set up and its proceedings were conducted and concluded - with the full participation of the appellant.

At this point, the issue of the Judicial Service Commission's referral of the matter to the President, the setting up of the Tribunal by the President, and the legality thereof has undoubtedly been overtaken by events.

The judgment, if rendered in favour of the appellant 'cannot operate to grant any actual relief' to her. There is no longer any 'present flesh and blood dispute that the court can resolve'.

In light of the above, it is my position that the appeal before this court is now moot.

Additionally, the fact that the appellant belatedly sought to amend the relief sought confirms that the matter is indeed moot and the relief sought no more than a brutum fulmen.

It must have been clear to her that it would not be competent for this Court to grant the relief she sought in her Notice of Appeal as conceded in the last paragraph of her Heads of Argument.

The tangible and concrete dispute between the parties had disappeared by the time the appeal was heard rendering the issues academic.

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Constitutional Rights re: Equal Protection of the Law, Non-Discrimination, Positive Discrimination and Classification

HH99-18 : C F (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

HH11-17 : ANDREW PASCOE vs MINISTRY OF LANDS AND RURAL RESETTLMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
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HH02-22 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE & RURAL RESETTLEMENT and OTHERS
Ruled By: MAFUSIRE J

Appealed
CC01-20 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY-GENERAL OF ZIMBABWE
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Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
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CC13-21 : ZIMBABWE WOMEN LAWYERS ASSOCIATION vs THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

CC03-22 : DIANA KAWENDA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HEALTH AND CHILD CARE and THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MAKARAU JCC, HLATSHWAYO JCC and PATEL JCC

HH24-19 : MOHAMMED ISMAIL (as the guardian of X - a minor) vs SAINT JOHNS COLLEGE and CAVALIERE COORRADO TRINCI N.O. and STEVE MARTIN N.O. and MINISTRY OF PRIMARY AND SECONDARY EDUCATION
Ruled By: CHITAKUNYE J

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

View Appeal
HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAFUSIRE J

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

HHH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J

CC02-23 : INNOCENT GONESE vs PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and PRESIDENT OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

CC07-16 : AMOS MAKANI and OTHERS vs ARUNDEL SCHOOL and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O.
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

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Law Portal Zimbabwe

Constitutional Rights re: Equal Protection of the Law, Non-Discrimination, Positive Discrimination and Classification

HH99-18 : C F (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: KUDYA J

HH11-17 : ANDREW PASCOE vs MINISTRY OF LANDS AND RURAL RESETTLMENT and W. BUNGU and THE ATTORNEY GENERAL N.O. Ruled By: CHITAPI J

HH02-22 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE & RURAL RESETTLEMENT and OTHERS Ruled By: MAFUSIRE J

Appealed CC01-20 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY-GENERAL OF ZIMBABWE Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, MAKONI JCC and BERE JCC

Appealed CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

CC13-21 : ZIMBABWE WOMEN LAWYERS ASSOCIATION vs THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

CC03-22 : DIANA KAWENDA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HEALTH AND CHILD CARE and THE ATTORNEY-GENERAL OF ZIMBABWE Ruled By: MAKARAU JCC, HLATSHWAYO JCC and PATEL JCC

HH24-19 : MOHAMMED ISMAIL (as the guardian of X - a minor) vs SAINT JOHNS COLLEGE and CAVALIERE COORRADO TRINCI N.O. and STEVE MARTIN N.O. and MINISTRY OF PRIMARY AND SECONDARY EDUCATION Ruled By: CHITAKUNYE J

View Appeal HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS Ruled By: ZHOU J, CHAREWA J and MUSHORE J

View Appeal HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE Ruled By: MAFUSIRE J

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: KUDYA J

HHH531-17 : STATE vs JOHANNES TOMANA Ruled By: CHITAPI J

CC02-23 : INNOCENT GONESE vs PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and PRESIDENT OF ZIMBABWE Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

CC07-16 : AMOS MAKANI and OTHERS vs ARUNDEL SCHOOL and OTHERS Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O. Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

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Zimbabwe

HH99-18 : C F (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

HH11-17 : ANDREW PASCOE vs MINISTRY OF LANDS AND RURAL RESETTLMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: CHITAPI J

HH02-22 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE & RURAL RESETTLEMENT and OTHERS
Ruled By: MAFUSIRE J

Appealed
CC01-20 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, MAKONI JCC and BERE JCC

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

CC13-21 : ZIMBABWE WOMEN LAWYERS ASSOCIATION vs THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

CC03-22 : DIANA KAWENDA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HEALTH AND CHILD CARE and THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MAKARAU JCC, HLATSHWAYO JCC and PATEL JCC

HH24-19 : MOHAMMED ISMAIL (as the guardian of X - a minor) vs SAINT JOHNS COLLEGE and CAVALIERE COORRADO TRINCI N.O. and STEVE MARTIN N.O. and MINISTRY OF PRIMARY AND SECONDARY EDUCATION
Ruled By: CHITAKUNYE J

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

View Appeal
HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAFUSIRE J

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

HHH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J

CC02-23 : INNOCENT GONESE vs PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and PRESIDENT OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

CC07-16 : AMOS MAKANI and OTHERS vs ARUNDEL SCHOOL and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O.
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA