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

Appealed
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.

SC55-15 : ZIMBABWE BANKING CORPORATION LIMITED vs SAIDI MBALAKA
Ruled By: GWAUNZA JA, GOWORA JA and MAVANGIRA AJA

In Lancashire Steel (Private) Limited v Mandevana Ors SC29-95..., the court stated:“Arguments may be addressed ad misericordiam as to how unfair it is that the four respondents out of a number of forty workers who participated in the collective unlawful job action should have been selected for punishment; ...

Appealed
CC15-19 : THOUSAND SADZIWANI vs NATPAK (PRIVATE) LIMITED and THE ATTORNEY-GENERAL and NATIONAL FOODS LIMITED
Ruled By: MALABA CJ and GOWORA JCC and HLATSHWAYO JCC

It was the applicant's allegation that he was unfairly discriminated against by the first respondent, in that charges of theft were preferred against him and not the casual workers he was working with. He further alleged that there was no basis for such differential treatment.On that allegation, he claimed that ...

On that allegation, he claimed that his fundamental right to equal protection of the law enshrined in section 56(1) of the Constitution was violated.

The position of the law is that an employer has a discretion to choose whom to discipline out of a group of employees who may have committed an act of misconduct. The basis of the discretion is the principle of privity of contract. Once an employer takes a serious view of an employee's misconduct, the employer can institute disciplinary proceedings against that employee. As a matter of law, it matters not that others, believed by the affected employee, to be equally guilty of the act of misconduct charged against him or her are not charged. It is the consideration of the individual employee's own alleged acts of misconduct which influences the decision by the employer whether to charge him or her with misconduct.

In Zimbabwe Banking Corporation Ltd v Mbalaka SC55-15, the court…, expressed the following view:

“The Labour Court also relied on the dicta in Lancashire Steel (Private) Limited v Mandevana & Ors SC29-95, wherein the court stated:

'Arguments may be addressed ad misericordiam as to how unfair it is that the four respondents out of a number of forty workers who participated in the collective unlawful job action should have been selected for punishment; but, such arguments cannot absolve them of their breach of their statutory duty not to participate in such action. It is not uncommon for the alleged ringleaders in any unlawful gathering or action to be singled out for punishment. If they are guilty it is not, in law, relevant that others may also have been guilty.'…,.

It is beyond doubt that the Labour Court was alive to the discretion that is reposed in the employer in the application of this principle in disciplining an employee for an alleged misconduct as appears in the following statement by the court a quo:

'This does put to rest the argument about perceived selective punishment and victimisation. The respondent should face the consequences of his actions and cannot be allowed to hide behind others.'”

See also Mashonaland Turf Club v Mutangadura 2012 (1) ZLR 183 (S).

CC01-13 : JEALOUSY MAWARIRE vs ROBERT MUGABE N.O. and MORGAN TSVANGIRAI N.O. and ARTHUR MUTAMBARA N.O. and WELSHMAN NCUBE and THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA, CHIWESHE AJA and GUVAVA AJA

This is an application brought under section 24(1) of the Constitution of Zimbabwe (hereinafter “the Constitution”) on the basis that the applicant's rights, enshrined in sections 18(1) and 18(1a), have been contravened.The PartiesThe applicant is a citizen of Zimbabwe domiciled in this country and has always regarded this country as ...

The Parties

The applicant is a citizen of Zimbabwe domiciled in this country and has always regarded this country as his only and permanent home. He is a registered voter in Zaka East Parliamentary Constituency and also a member of the non-governmental organisation, the Centre for Election Democracy in Southern Africa, based in Harare.

The first respondent is the President of Zimbabwe, Robert Gabriel Mugabe, who is cited in his official capacity and as the office-bearer responsible for fixing the date for Parliamentary, Presidential, and local authority elections (hereinafter called “the harmonised elections”). He is also cited in his capacity as a principal of the Inter-Party Political Agreement (commonly referred to as the Global Political Agreement (“GPA”) between his political party, the Zimbabwe African National Union (Patriotic Front) ("ZANU-PF") and the two formations of the Movement for Democratic Change ("MDC"), referred to in Schedule 8 to the Constitution.

The second respondent is Morgan Richard Tsvangirai, who has been cited in his capacity as the Prime Minister of Zimbabwe, who also is a signatory to the Global Political Agreement (GPA), representing his formation of the MDC.

The third respondent is Arthur Guseni Oliver Mutambara, who has been cited as the Deputy Prime Minister of Zimbabwe and also due to the fact that he is a signatory to the Global Political Agreement (GPA).

The fourth respondent is Welshman Ncube, a Minister in Government and cited herein in his capacity as the representative of the other formation of the MDC, which organisation is a party to the Global Political Agreement (GPA) and is represented in the current coalition government.

The fifth respondent is the Attorney-General, who has been drawn into these proceedings in view of their constitutional nature and in his capacity as the principal legal advisor to the Government.

Background

On 2 May 2013, the applicant issued an urgent Court Application against the above five respondents.

Before any opposition was filed to the court application, the applicant was, on 6 May 2013, directed by the Registrar of the Supreme Court of Zimbabwe to file a separate urgent Chamber Application seeking leave for the urgent hearing of his Court Application, if such was his wish.

The application proceeded to do so in case Number SC157/2013. This urgent Chamber Application was subsequently heard on 15 May 2013. On 17 May 2013, the order sought by the applicant in the urgent Chamber Application was granted.

The principal application was opposed by the first, second, and fourth respondents.

The applicant subsequently filed a replying affidavit as well as a notice of an amendment of the draft order to his principal application.

The amended order sought is as follows:

"(1) The First Respondent be and is hereby directed to forthwith proclaim an election date for a Presidential election, general election, and elections for members of the governing bodies of local authorities in terms of section 58(1) of the Constitution of Zimbabwe.

(2) The elections referred to in paragraph 1 hereof shall be conducted no later than the 30th day of June 2013.

ALTERNATIVELY

The elections referred to above shall be conducted no later than (the) 25th day of July 2013.

(3) Any party (parties) who oppose(s) this application shall bear the costs of this suit jointly and severally, the one paying the other to be absolved."

Read together, the papers filed of record seem to pose the following as issues which fall for determination:

(a) Whether the applicant has locus standi to approach this Court in terms of section 24(1) of the Constitution of Zimbabwe;

(b) When do harmonised general elections fall due in terms of the laws of Zimbabwe?

(c) Whether the applicant has made out a case for the order sought.

Each issue will now be dealt with in turn....,.

(b) When do harmonised general elections become due?

It is common cause amongst all the parties that Parliament shall stand dissolved, by the effluxion of time, on 29 June 2013.

Whilst the papers before this Court are voluminous and at times unnecessarily argumentative, the issue before this Court is in fact a simple one, which can be reduced to one question: When, after the accepted dissolution of Parliament, by the effluxion of time, in terms of the Constitution, should the harmonised elections be held?

The response to this rather simple and straightforward question has elicited contradictory responses from the second and fourth respondents on the one hand, and the applicant, on the other. The responses from the second and fourth respondents also show a serious divergence of opinion between them.

According to the second respondent, who is the Prime Minister and an important part of the Executive:

“What is plain from section 58(1) of the Constitution of Zimbabwe, as read with other relevant sections, is the fact that if the terms of Parliament, local government authorities, and of the President expire on 29 June 2013 through the natural passage of time (as opposed to induced dissolution or prorogation) elections must be conducted within four (4) months of the automatic dissolution of Parliament.”…,.

The fourth respondent, who himself is a Minister of Government and leader of a party to the Global Political Agreement, takes the following similar position when he states:

“Alternatively, if the President does not dissolve Parliament and allows it to automatically dissolve by operation of law on the last day of its five year term, in that event, the President must cause an election to be held within four months of the date of the automatic dissolution of Parliament.”…,.

He then goes on to say:

“The Constitution permits that an election be held anytime within four months after the dissolution of Parliament by operation of law at the expiration of its five year term, and, hence, that Constitution, by so providing, contemplates and allows that there may be no Parliament between its automatic dissolution and the holding of an election within four months of that dissolution.”…,.

The first respondent disagrees with the interpretation by the second and fourth respondents, saying it is not supported by the Constitution or the canons that govern its interpretation. Instead, the first respondent agrees with the interpretation placed by the applicant on sections 58 and 63 of the Constitution.

Section 58(1) of the Constitution simply states:

"(1) A general election, and elections for members of governing bodies of local authorities, shall be held on such day, or days, within a period not exceeding four months after the issue of a proclamation dissolving Parliament under section 63(7) or, as the case may be, the dissolution of Parliament under section 63(4) as the President may, by proclamation in the Gazette, fix.”

Now, it is clear that section 58(1) of the Constitution, read in its ordinary sense, deals with the timing of elections or the fixing of dates for elections by proclamation.

If one were to pose the question “when are harmonised general elections to be held?” and seek an answer from the above quoted provisions of section 58(1) of the Constitution, two possible answers emerge, depending on punctuation and emphasis and are juxtaposed below as READING 'A' and 'B':

READING 'A'

"PART 6

Elections and Sessions

58 Elections

(1) A general election, and elections for members of the governing bodies of local authorities, shall be held on:

(i) Such day or days within a period not exceeding four months after the issue of a proclamation dissolving Parliament under section 63(7); or

(ii) As the case may be, the dissolution of Parliament under section 63(4) as the President may, by proclamation in the Gazette, fix."

READING 'B'

"PART 6

Elections and Sessions

58 Elections

(1) A general election, and elections for members of the governing bodies of local authorities, shall be held on such day, or days, within a period not exceeding four months after:

(i) The issue of a proclamation dissolving Parliament under section 63(7); or

(ii) As the case may be, the dissolution of Parliament under section 63(4) as the President may, by proclamation in the Gazette, fix."

There could be any number of other variations the section 58(1) of the Constitution text can be broken into, but, the two scenarios above will suffice for the purpose of this case.

Both Reading 'A' and Reading 'B' answer to the question when elections are to be held but with one putting the emphasis on the preposition 'on' and the other on 'after'.

Both interpretations are compelling.

Adopting one interpretation or the other results in starkly different outcomes. In one case, elections must be held within the life of Parliament. In the other case, elections may be held up to four months after the dissolution of Parliament.

A Court faced with competing possible interpretations of a constitutional provision must call into aid principles or canons of construction. In this regard, FIELDSEND CJ had this to say in Hewlett v Minister of Finance 1981 ZLR 571:

“…, in general, the principles governing the interpretation of a Constitution are basically no different from those governing the interpretation of any other legislation. It is necessary to look to the words used and to deduce from them what any particular section, phrase, or word means, having regard to the overall context in which it appears.”

Accordingly, section 58(1) of the Constitution must be examined, not in isolation, but having regard to the overall context in which it appears.

In this regard, it is important to immediately quote section 63 of the Constitution referred to in this provision, emphasizing the key subsections 63(7) and 63(4):

"63 Prorogation or Dissolution

(1) The President may at any time prorogue Parliament.
[Subsection substituted by section 6 of Act No.23 of 1987 (Amendment No.7)]

(2) Subject to the provisions of this Constitution, the President may at any time dissolve Parliament.
[Subsection substituted by section 6 of Act No.23 of 1987 (Amendment No.7)]

(3)…,.
[Subsection repealed by section 6 of Act No.23 of 1987 (Amendment No.7)]

(4) Parliament, unless sooner dissolved, shall last for five years, which period shall be deemed to commence on the day the person elected as President enters office in terms of section 28(5) after an election referred to in section 28(3)(a), and shall then stand dissolved:

Provided that, where the period referred to in this subsection is extended under subsection (5) or (6), Parliament, unless sooner dissolved, shall stand dissolved on the expiration of that extended period.
[Subsection inserted by section 14 of Act No.11 of 2007 (Amendment No.18)]

(5) At any time when Zimbabwe is at war, Parliament may from time to time extend the period specified in subsection (4) by not more than one year at a time:
Provided that such period shall not be extended under this subsection for more than five years.

(6) At any time when there is in effect a declaration under section 31J(1), Parliament may from time to time extend the period specified in subsection (4) by not more than six months at a time:
Provided that such period shall not be extended under this subsection for more than one year.
[Subsection amended by section 26 of Act No.23 of 1987 (Amendment No.7)]

(7) Subject to the provisions of subsection (4), any prorogation or dissolution of Parliament shall be by proclamation in the Gazette, and, in the case of a dissolution, shall take effect from the day preceding the day or first day, as the case may be, fixed by proclamation in accordance with section 58(1) for the holding of a general election.

(8) On the dissolution of Parliament, all proceedings pending at the time shall be terminated, and, accordingly, every Bill, motion, petition, or other business shall lapse."…,.

Although on the face of it sections 58 and 63 of the Constitution deal with distinct but related constitutional matters, the fixing of dates for elections on the one hand and the life of Parliament on the other, the inter-relatedness of these matters creates a maze of back and forth cross-referencing between section 58(1) and sections 63(4) and 63(7) of the Constitution.

These provisions are also subject to stipulations in the Constitution itself and the Electoral Act, especially with regard to time limits.

However, there are some conclusions that can be teased out of this maze to aid the interpretation of the provision in question:

(a) There must be a proclamation fixing the dates for elections which is issued by the President in the Gazette according to sections 58(1) and 63(7) of the Constitution.

(b) Section 63(7) is subjected to the provisions in section 63(4) in the sense that the President may not dissolve Parliament and fix dates which fall outside the life of Parliament. In other words, elections following a Presidential dissolution of Parliament must be held before the expiry of the life of that Parliament.

There are other provisions in section 64(4) of the Constitution which might have necessitated the subjection of section 63(7) to it, viz: that dissolution of Parliament, following expiry of its extended period, is automatic, whereas section 63(7) requires all other dissolutions to be by proclamation.

(c) The fixing of election dates must take into account the mandatory time limits set out in the Constitution and the Electoral Law.

From the above conclusions, one can now pose a number of useful questions and try to answer them.

What is this proclamation that is required for both the Presidential and the automatic dissolution of Parliament? What is its purpose?

From a common sense position, one could say a proclamation is issued in advance, giving a period of notice and time, prior to the Presidential or automatic dissolution, in order to afford the electoral authorities and the public time to prepare for the elections.

That appears to also coincide with the legal requirements teased above.

However, to get a real life 'feel' of this phenomenon called 'proclamation' I dug up Statutory Instrument 7A of 2008, which, of course, the Court is perfectly entitled to take judicial notice of.

It was issued on 24 January 2008, dissolving Parliament “with effect from midnight, the 28th March 2008” thus giving the electoral authorities and the public slightly over two months to prepare for the elections.

In that case, the night of dissolution was perfectly followed by the day, or days, of elections as stipulated in section 63(7) of the Constitution. The proclamation goes on to fix the dates, places, and times of the sitting of the nomination courts and the presiding officials thereof throughout the country for Presidential, Parliamentary, and local government elections.

This proclamation was issued by the President using his discretion to dissolve Parliament and call for elections in terms of section 63(7) of the Constitution.

It is important to note, that, the proclamation is prospective, not retrospective, pointing to a date in future when Parliament will stand dissolved and complying with all statutory time limits.

Since the date for the automatic end of the life of Parliament is known in advance, it would be perfectly feasible for a President to anticipate such a date and issue a similar proclamation announcing that Parliament shall stand dissolved by midnight of that day, followed by elections on the following day, or days, and complying with all statutory time limits.

Not only would it be feasible, but, in my view, it would be the proper, constitutional, and legal thing to do.

In fact, the question may be asked: since the date of automatic dissolution is known in advance, what is the purpose of granting the President an additional four months within which to proclaim the dates for elections after dissolution of Parliament?

Is it to shield that decision from Parliamentary scrutiny or to reward the President for having allowed Parliament to run its full course, by granting the Executive four months to rule by decree?

The mind boggles at this strange effect of adopting Reading 'B' of section 58(1) of the Constitution.

The second scenario of interpreting section 58(1) of the Constitution also implies that the President must wait until the life of Parliament would have expired in terms of section 63(4) and then issue a proclamation recognising that fact and fixing dates within four months of the event.

The expiry of the life of Parliament would have passed silently without notice to all concerned, but, with a dramatic effect of creating a deformed State without Parliament for up to four months.

As would be shown below, this would lead to an absurdity and glaring anomalies.

There are two approaches open to a Court faced with apparent absurdities in the construction of statutes - the narrow and the wider approach.

The narrow approach was articulated in The Queen v Judge of the City of London Court [1892] QBD 273 by LORD ESHER as follows:

“If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the legislature has committed an absurdity. In my opinion, the rule has always been this, if the words of an Act admit of two interpretations, then, they are not clear and if one interpretation leads to an absurdity, and the other does not, the Court will conclude the legislature did not intend to lead to an absurdity and will adopt the other interpretation.”

Under the narrow approach, the Court chooses between the two possible interpretations, the one which does not lead to an absurdity.

In this case, it would be the first interpretation or Reading 'A' of section 58(1) of the Constitution.

In Venter v Rex 1906 TS 910…, INNES CJ expressed the wider approach thus:

“That being so, it appears to me that the principle we should adopt may be expressed somewhat in this way: that, when to give the plain words of the statute their ordinary meaning would lead to absurdity so glaring that it could never have been contemplated by the legislature, or where it would lead to a result contrary to the intention of the legislature, as shown by the context or by such other considerations as the Court is justified in taking into account, the Court may depart from the ordinary effect of the words to the extent necessary to remove the absurdity and to give effect to the true intention of the legislature.”

According to the “wider approach” the Court has a broad discretion in removing an absurdity, being guided, ultimately, by the intention of the Legislature, or, in constitutional terms, by the intention of the framers of the supreme law.

Once an ambiguity or absurdity has been established, it would appear that the proper approach to adopt would be the wider one, where the Court calls into aid historical, schematic, teleological, and purposive approaches to interpretation.

In the case of Buchanan & Co v Babco Ltd (C.A.) [1977] QBD 208…, LORD DENNING followed precisely this method of interpretation, long adopted by the European Court of Justice at Luxembourg, thus:

“They adopt a method which they call in English by strange words, at any rate they were strange to me, the 'schematic and teleological' method of interpretation. It is not really so alarming as it sounds. All it means is that the judges do not go by the literal meaning of the words, or by the grammatical structure of the sentence.

They go by the design or purpose which lies behind it.

When they come upon a situation which is, to their minds, within the spirit, but not the letter, of the legislation, they solve the problem by looking at the design and purpose of the legislation - at the effect which it was sought to achieve.

They then interpret the legislation so as to achieve the desired effect.

This means that they fill in gaps, quite unashamedly, without hesitation. They ask simply: what is the sensible way of dealing with this situation so as to give effect to the presumed purpose of the legislation?

To our eyes, shortsighted by tradition, it is legislation, pure and simple. But to their eyes, it is fulfilling the true role of the courts. They are giving effect to what the legislature intended, or may be presumed to have intended. I see nothing wrong with this. Quite the contrary.”

If the framers of the Constitution wanted Zimbabwe to function without a Parliament for four months, as suggested by the second and fourth respondents, they surely would have said so in clear and explicit terms and they would not have left this to speculation and interpretation. The Constitution itself states emphatically in section 52:

“Provided that…, no law shall be deemed to amend, add to or repeal any provision of this Constitution unless it does so in express terms.”

Therefore, the only interpretation that can be given to this section is one that favours constitutionalism.

It is common cause that the current Constitution is based on the fundamental principles of separation of powers between the three arms of State: the Executive, the Judiciary and the Legislature. This principle is entrenched in the Constitution in the various sections which state, in peremptory terms, that there shall be a President, a Parliament, and a Judiciary.

Nowhere in the Constitution is there an excuse to function without any one of these branches for an extended period of time.

Whatever exceptions are dictated by transitional imperatives of the going out and coming in of governments, these are always kept at the minimum possible.

In fact, so important are the tripartite pillars of State, that, even in a time of emergency or war, these three institutions are preserved: see sub-sections 63(5) and (6) of the Constitution.

The principle of constitutionalism, which we referred to earlier, is embodied in section 3 of the Constitution which states:

“This Constitution is the supreme law of Zimbabwe, and, if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void.”

If one applies both the doctrine of separation of powers and constitutionalism, it is inconceivable that an interpretation that permits or allows for any extended period without one or other arms of State, in this case Parliament, can be sustainable.

To exist too long without a Parliament would be tantamount to shredding the Constitution and inviting a state of lawlessness and disorder.

It would, with respect, be tantamount to an “annihilation” of the Constitution, in the words of MALABA JA…, in Mike Campbell (Pvt) Ltd and Another v Minister of Lands and Another 2008 (1) ZLR 17 (S).

If section 58 of the Constitution is a repeal or amendment of the peremptory requirement that “there shall be a Parliament" it should have said so explicitly.

It does not do this.

It is also instructive to note, that, in terms of section 158 of the new incoming Constitution, the timing of elections is such that they must be held before the expiry of the life of Parliament, thus:

"158 Timing of Elections

(1) A general election must be held so that polling takes place not more than –

(a) Thirty days before the expiry of the five-year period specified in section 143."…,.

The submission that the mischief of rule by decree, consequent upon no elections being held by 29 June 2013, is obviated by the continuation in office of both the President and Cabinet, in terms of section 29(1) of the Constitution, totally misses the point, that, what is at issue is rule by the Executive in the absence of the checks and balances of a Parliament.

It matters not whether the rule by decree is that of a single individual or that of a group, such as a Cabinet. The purpose of this section is to allow a smooth handover between the retiring and the incoming Executive in the shortest possible time.

Its existence is also further proof of the need to ensure that the period between the dissolution of one Parliament and the inauguration of the next is as short as possible.

Furthermore, the applicant is correct in submitting, that, the fourth respondent fails to appreciate that the over-arching philosophy in section 31E(2) of the Constitution is in fact constitutionalism and not proof that governance without Parliament is acceptable.

The section is an exhortation to anyone appointed as Vice-President, Minister or Deputy Minister (from outside Parliament) to become Members of Parliament within three months.

The only time when such officials are allowed to exceed those three months is when during that period Parliament is dissolved (thus frustrating him or her from becoming a member). Only then can the period be extended to “until Parliament first meets after dissolution”.

In fact, this provision pre-supposes the prior existence of Parliament and not its wholesale absence, and caters for a few desired members of the Executive who may not have made it to Parliament.

It is also instructive to have recourse to the history of this provision.

The original provision stated that the terms of office of Vice-Presidents, Ministers or Deputy Ministers terminated on their ceasing to be Members of Parliament, thus emphasising the centrality of an extant Parliament in the composition and functioning of the Executive in a democratic dispensation.

Section 31E of the Constitution reads:

“31E Tenure of office of Vice-Presidents, Ministers and Deputy Ministers

(1) The office of a Vice-President, Minister or Deputy Minister shall become vacant –

(a) If the President removes him from office; or

(b) If he resigns his office by notice in writing addressed and delivered to the President; or

(c) Upon the assumption of office of a new President.
[Subsection amended by section 9 of Act No.15 of 1990 (Amendment No.10)]

(2) No person shall hold office as Vice-President, Minister or Deputy Minister for longer than three months unless he is a Member of Parliament:
Provided that if during that period Parliament is dissolved, he may continue to hold such office without being a Member of Parliament until Parliament first meets after the dissolution.
[Subsection substituted by section 2 of Act No.31 of 1989 (Amendment No. 9)]"

In the context of the GPA-based Government of National Unity (GNU), not to be confused with the animal gnu with an ox-like head and a tufted tail, and, ironically, also an inhabitant of the Savannas of Africa, whose existence is premised on political parties represented in Parliament, the question arises as to what the justification, constitutionally, of its continued existence becomes once Parliament is no more.

It becomes a Government made up of political parties previously represented in Parliament! And what would that say to other political parties patiently waiting for their chances at the polls?

In conclusion, therefore, the proper construction of section 58(1) of the Constitution is that election dates should be fixed and notified, whether pursuant to Presidential dissolution or automatic dissolution of Parliament, in such a way that elections are held within the life of Parliament on a day/days immediately following its dissolution.

The setting of these dates has to take into account the requirements of the Constitution and the Electoral Act, which stipulate a period of at least forty-four days between proclamation and actual holding of elections.

In terms of the provisions of the new Constitution, which came into force on publication day, section 157(3) of the Constitution, the minimum period is forty-four days, thus:

"157(3) The Electoral Law must provide for the nomination of candidates in any election to take place at least fourteen days after the publication of the proclamation calling for that election. Polling must take place at least thirty days after the nomination of candidates.”

(c) Whether the applicant has made out a case for the Order sought

The essence of the applicant's case is that the first respondent has failed to fix and proclaim a date for Presidential, Parliamentary, and local government elections as required by section 58(1) of the Constitution, and, failure by the first respondent to do so is unconstitutional in general, and, in particular, is in violation of the applicant's rights as a voter and his legitimate expectation of protection of the law as enshrined in sub-sections 18(1) and (1a) of the Constitution.

As can be deduced from what is concluded above, the first respondent is already out of time in fixing and proclaiming dates for the harmonised general elections to be held before the expiry of the life of the current Parliament.

The applicant's rights, as already stated above, have already been infringed and continue to be violated with each passing day.

The applicant is entitled to the declaration of such infringement and an order correcting or rectifying, as far as is possible, such infringement: see Commercial Farmers Union v Minister of Lands & Ors 2000 (2) ZLR 469…,.

When the first respondent failed to fix and proclaim a date for Presidential, Parliamentary, and local government elections, as required by section 58(1) of the Constitution, to enable elections to be held on the dissolution of Parliament on 29 June 2013, not only did he violate the applicant's fundamental right as protected by section 18 of the Constitution, he thereby derailed the electoral process.

From then onwards, the rule of law, as regards the electoral process, was no longer extant.

It is imperative that the rule of law be restored to the electoral process and the applicant be afforded some relief.

The first respondent has placed himself in a serious legal quandary or predicament by his failure to issue the said proclamation timeously.

The first respondent cannot remedy the situation by issuing the proclamation for elections to be held by 29 June 2013, as doing so will inevitably contravene the time-lines set out in section 38 of the Electoral Act.

Prospective Parliamentary candidates are entitled, in terms of section 38 of the Electoral Act, to fourteen days to organise their nominations and thirty days to campaign before the date of the elections.

Thus, affixing the date of the elections now, in terms of section 58(1) of the Constitution, in anticipation of the dissolution of Parliament on 29 June 2013, will have the effect of violating the fundamental right of aspiring Parliamentary candidates, entitling them to bring similar applications to that of the applicant.

Apart from this, the coming into operation of the new Constitution of Zimbabwe has further complicated the situation.

The new Constitution has introduced new time lines and necessitated amendments to the Electoral Law, making the immediate issuance of a proclamation, fixing the date for harmonised elections on the dissolution of Parliament on 29 June 2013, legally impossible.

The Court, in my view, is compelled to take into account the exigencies of this situation in the order that it makes.

Thus, compliance with the Court order must not, of necessity, compel the first respondent to contravene another electoral provision.

The applicant must have appreciated the first respondent's legal predicament.

In his draft order, the applicant asked for the immediate issuance of a proclamation fixing the date of the harmonized elections upon the dissolution of Parliament on 29 June 2013. In the alternative, the applicant asked for the issuance of a proclamation forthwith setting the date of the harmonised elections by no later than 25 July 2013.

I have no doubt that the applicant's alternative relief is out of the realization and appreciation of the first respondent's legal predicament.

I am inclined to grant the alternative relief sought by the applicant, and add six days to 25 July 2013 to compensate for the period between the hearing of this appeal and the handing down of this judgment.

The first respondent, while not explicitly consenting to the alternative relief, indicated that he had no objection to such relief.

The main litigants in this matter, namely, the applicant and the first respondent, are accordingly in agreement over the alternative relief. This relief also accords with the Court's desire to issue an order that will help restore legality to the electoral process as quickly as possible....,.

It is my hope, that, although the order of the Court is not against the second and fourth respondents, they will use their good offices to assist the first respondent to restore the rule of law to the electoral process.

(e) Order

In the result, the Court makes the following order:

1. It is declared that the harmonised general elections, in terms of section 58(1) of the Constitution of Zimbabwe, are due upon the dissolution of Parliament on 29 June 2013. However, due to the first respondent's failure to issue a proclamation fixing the date for the harmonized elections timeously it is no longer legally possible to hold the harmonised elections on that date.

2. It is declared that the failure by the first respondent to fix and proclaim date(s) for harmonized general elections to take place by 29 June 2013 is a violation of the first respondent's constitutional duty towards the applicant to exercise his functions as a public officer in accordance with the law and to observe and uphold the rule of law in terms of section 18(1a) of the Constitution.

3. It is further declared, that, by failing to act as stated in paragraph 2 above, the first respondent has violated the applicant's rights as a voter and his legitimate expectation of protection of the law entrenched in section 18(1) of the Constitution.

4. Accordingly, the first respondent be and is hereby ordered and directed to proclaim, as soon as possible, a date(s) for the holding of Presidential election, general election and elections for members of governing bodies of local authorities, in terms of section 58(1) of the Constitution of Zimbabwe, which elections should take place by no later than 31 July 2013....,.

PATEL JA:

Turning to the substantive merits of the matter, the principal issue for determination is the meaning of and inter-relationship between sections 58(1), 63(4) and 63(7) of the former Constitution.

On this aspect, I fully endorse the principle of constitutionalism that informs the approach taken by the learned CHIEF JUSTICE and the majority of the Court. However, I am constrained, with the utmost respect, to disagree with the construction that they place on the provisions under review, in particular, on section 58(1) of the Constitution.

The tripartite structure of the State is the keystone of every constitutional democracy and the need to safeguard the attendant separation of powers is unquestionably paramount.

However, as was recognised in Mike Campbell (Pvt) Ltd and Anor v Minister of Lands and Anor 2008 (1) 17 (S)…, the clear words of a Constitution must be construed to override any doctrine of constitutionalism predicated on essential features or core values.

In general, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of statutes. One must look to the words actually used and deduce what they mean within the context in which they appear: see Hewlett v Minister of Finance 1981 ZLR 571 (S)…,.

If the words used are precise and un-ambiguous, then, no more is necessary than to expound them in their natural and ordinary sense: see The Sussex Peerage (1843-1845) 65 RR 11…,.

In essence, it is necessary to have regard to the words used and not to depart from their literal and grammatical meaning unless this leads to such an absurdity that the Legislature could not have contemplated it: see, in this regard, the case authorities cited by the learned CHIEF JUSTICE.

Section 58(1) of the Constitution, as amended by Act No.11 of 2007 to accommodate harmonised elections, prescribes when general elections are to be held and the fixing of election dates, as follows:

“A general election, and elections for members of the governing bodies of local authorities, shall be held on such day or days within a period not exceeding four months after the issue of a proclamation dissolving Parliament under section 63(7) or, as the case may be, the dissolution of Parliament under section 63(4) as the President may, by proclamation in the Gazette, fix.”

The prorogation and dissolution of Parliament are dealt with in section 63 of the Constitution. For present purposes, sub-sections (4) and (7) are the pertinent provisions and they provide as follows:

“(4) Parliament, unless sooner dissolved, shall last for five years, which period shall be deemed to commence on the day the person elected as President enters office in terms of section 28(5) after an election referred to in section 28(3)(a), and shall then stand dissolved:
Provided that, where the period referred to in this subsection is extended under subsection (5) or (6), Parliament, unless sooner dissolved, shall stand dissolved on the expiration of that extended period.

(7) Subject to the provisions of subsection (4), any prorogation or dissolution of Parliament shall be by proclamation in the Gazette, and, in the case of a dissolution, shall take effect from the day preceding the day or first day, as the case may be, fixed by proclamation in accordance with section 58(1) for the holding of a general election.”

The first point to note is that both section 58(1) and sub-sections 63(4) and (7) of the Constitution have remained unaltered in substance since they were first enacted in 1980.

The second more critical point is that they deal with two distinct, though related, constitutional processes, viz. the fixing of elections on the one hand and the life of Parliament on the other.

These two processes, and their objectives, have been unnecessarily conflated by the applicant in casu.

The approach adopted by the learned CHIEF JUSTICE, in relation to section 58(1) of the Constitution, is to read it so that the two separate scenarios for the dissolution of Parliament are taken to follow after the words “shall be held on” rather than the phrase “within a period not exceeding four months after”.

In my respectful view, dividing section 58(1) of the Constitution in this fashion detracts from its grammatical structure and leads to an inchoate rendition of the provision.

In particular, in the situation where Parliament is dissolved by operation of law, under section 63(4) of the Constitution, the literal result is that elections are to be held “on the dissolution of Parliament”.

Does this mean that elections are to be held simultaneously with the dissolution of Parliament, or immediately thereafter, or at some later stage?

More importantly, this reading has the peculiar effect that no actual “election day or days” are fixed, contrary to the very purpose of section 58(1) of the Constitution.

Such a construction surely cannot reflect what the Legislature would have intended.

A plain reading of section 58(1) of the Constitution makes it clear, that, elections must be held after the dissolution of Parliament on such day, or days, as the President may fix by proclamation.

This applies to both scenarios for the dissolution of Parliament.

Where it is dissolved by the President under section 63(7) of the Constitution, elections must take place within four months after the issue of a proclamation dissolving Parliament. Where Parliament stands dissolved by operation of law, in terms of section 63(4) of the Constitution, elections must be held within four months after the dissolution of Parliament.

In my considered view, the wording used is unambiguous and does not admit of any other interpretation, nor does it entail any absurdity. Consequently, there is no need to invoke any teleological or purposive approach in the construction of section 58(1) of the Constitution.

The apparent ambiguity that might emerge arises from the wording of section 63(7) of the Constitution and its juxtaposition of the dissolution of Parliament with the first election day fixed under section 58(1).

Read in their context, however, there is no real ambiguity as between sections 58(1) and 63(7) of the Constitution.

What the latter provision means is this:

Any prorogation or dissolution of Parliament by the President must be effected by proclamation in the Gazette. In the case of a dissolution, this must take effect from the day preceding the day, or days, fixed by proclamation under section 58(1) of the Constitution for the holding of a general election. This would apply, in particular, where the President dissolves Parliament, in terms of section 63(2), well before the expiration of its five year tenure.

However, this is subject to section 63(4) of the Constitution, so that the automatic dissolution of Parliament, by operation of law, may, but need not, take effect on the day preceding the day fixed for the holding of elections.

In other words, the prescribed tenure of Parliament cannot be extended beyond five years in the event that the date fixed for elections falls outside that period. In that case, the dissolution of Parliament cannot immediately precede the election date fixed under section 58(1) of the Constitution.

Reading all of the relevant provisions together, the relationship between the holding of elections and the life of Parliament is resolved as follows:

Where Parliament is dissolved by the President, acting under section 63(2) of the Constitution, elections must be held within four months after the issue of the proclamation dissolving it in terms of section 63(7).

In this case, the two events must be synchronised so that the dissolution of Parliament takes effect on the day preceding the day, or days, fixed for elections in terms of section 58(1) of the Constitution.

Conversely, where Parliament is dissolved by operation of law, after the effluxion of five years, in terms of section 63(4) of the Constitution, elections must be held within a period not exceeding four months after the dissolution of Parliament.

In this case, elections need not be held immediately after such dissolution, so long as they are held on a day, or days, within the four month period after dissolution.

In short, different time frames apply to the two forms of dissolution.

Does this differentiation necessarily entail an absurdity? I am inclined to think not.

Where the President takes a deliberate decision, for whatever reason, of political or practical expediency, to dissolve Parliament before the expiry of its prescribed five year tenure, that decision involves the exercise of an extraordinary executive power: and, in that extraordinary eventuality, Parliament has deemed it fit to ensure that there should not be any delay between its dissolution and the holding of general elections.

However, the need for such urgency or immediacy does not arise where Parliament continues in existence and operation throughout its ordinary term of five years.

Of course, it is a matter of concern that the plain reading of section 58(1) of the Constitution invites the “spectre” of rule by Executive Decree for a maximum period of four months without the restraint of Parliamentary oversight.

While the possibility of this hiatus may be undesirable from a democratic perspective, it is not necessarily absurd or unconstitutional.

That scenario, unpalatable as it may be, is explicitly contemplated in section 31E of the Constitution dealing with the tenure of office of members of the Executive.

More specifically, section 31E(2) of the Constitution provides that:

“No person shall hold office as Vice-President, Minister or Deputy Minister for longer than three months unless he is a Member of Parliament:
Provided that if during that period Parliament is dissolved, he may continue to hold such office without being a member of Parliament until Parliament first meets after the dissolution.”

This provision was substituted by Parliament through Act No.31 of 1989, in tandem with the advent of the Executive Presidency.

It constitutes a clear recognition and acceptance by Parliament itself of the possibility of its abeyance for the duration of at least three months. In effect, it unequivocally fortifies the plain and unqualified construction of section 58(1) of the Constitution vis-a-vis the provisions of subsections 63(4) and (7).

For all of the aforestated reasons, I would dismiss the present application on its merits.

View Appeal
CC03-23 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, CLIMATE AND RURAL SETTLEMENT and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

This is an appeal against the entire judgment of the High Court, sitting at Harare, in which it dismissed a constitutional application placed before it.

The appellants approached the court a quo seeking an order that section 4 and section 6(1)(b) of the Communal Land Act [Chapter 20:04] (hereinafter the “Communal Land Act”) be declared ultra vires the Constitution of Zimbabwe 2013 (“the Constitution”).

The application was prompted by a series of legal instruments passed by the Government which gave notice of the setting aside of 12,940 hectares in the administrative district of Chiredzi, initially for 'lucerne production.' A subsequent statutory instrument altered the purpose of the reservation of the area to an “irrigation scheme.”

The court a quo did not find merit in the application. It held that there was nothing unconstitutional with the provisions of sections 4 and 6 of the Communal Land Act. It accordingly dismissed the application.

Irked by that decision, the appellants appealed to this Court in terms of section 175(4) of the Constitution.

FACTUAL BACKGROUND

The appellants in this matter are members of the Hlengwe Shangani ethnic group. They are peasant farmers who occupy tracts of land in the Chilonga area in Chiredzi. They practise mixed farming. The community occupies the south-eastern Lowveld of Zimbabwe, particularly areas bordering or falling within Chikombedzi, Chiredzi, Gonarezhou, Hippo Valley, Malilangwe, Mwenezi, and Triangle. The land in question falls along the Save, Runde, and Limpopo Rivers. The same ethnic group also occupies parts of Mozambique and South Africa. It claims occupation of the land in question well before the advent of colonialism in the 1890s.

The first and second respondents are Cabinet Ministers responsible for the administration of the Ministry of Lands, Agriculture, Water, Climate, and Rural Settlement and the Ministry of Local Government and Public Works, respectively.

The third respondent is the President of the Republic of Zimbabwe (hereinafter referred to as the “President”) with the fourth respondent being the State's principal legal advisor (Attorney General of Zimbabwe).

On 26 February 2021, a statutory instrument, S.I.50/21, was published by the Minister of Local Government, Urban, and Rural Development, giving notice, that, acting in terms of section 10 of the Communal Land Act, he had set aside 12,940 hectares in the district of Chiredzi for lucerne production. On the same date, the President, acting under section 6 of the Communal Land Act, published S.I.51/21, giving notice that a piece of land in extent of 12,940 hectares had been set aside from the district of Chiredzi.

It is common cause that the two legal instruments contained errors.

The first, S.I.50/21, cited the wrong Minister as the administrative authority. This was corrected by the publication of S.I.63A/21 on 9 March 2021 which cited the Minister of Local Government and Public Works. In addition, the purpose for the setting aside of the 12,940 hectares was altered from that of lucerne production to an irrigation scheme. On the same day, the President published S.I.72A/21. The Statutory Instrument repealed S.I.51/21and gave notice, that, the President, acting in terms of section 10 of the Communal Land Act, had set aside a piece of land in extent of 12,940 hectares in the district of Chiredzi for the setting up of an irrigation scheme.

Feeling threatened by the imminent reservation of land within their area of habitat, the appellants applied to the High Court (“the court a quo”) impugning the constitutional validity of section 4 and section 6(1)(b) of the Communal Land Act.

The first appellant averred, that, the land that had been set aside, in extent 12,940 hectares, formed a significant part of their ancestral lands. He averred, that, the land was part of their ancestral heritage and that the Hlengwe-Shaangani communities had inhabited the area for over half a millennium. He averred, that, given the length of time the community had been in occupation of the same, they could not be dispossessed of the land at the mere whim of the respondents, and that, as a result, the reservation of the identified piece of land impacted on their fundamental human rights.

The first appellant listed the fundamental rights contained in sections 51, 48, 71, 63 and section 56(1) of the Constitution of Zimbabwe as being violated by the respondents actions. He asserted that sections 4 and 6(1)(b) of the Communal Land Act were the offending sections that enabled the violation of their fundamental rights.

Section 4 of the Communal Land Act was criticized as unconstitutional and labelled a relic from the colonial era that reinforced the notion that Africans could not own or vindicate property rights. The first appellant challenged the status quo, which he alleged prevented “indigenous peoples” from owning property rights to their ancestral homes in communal areas. Section 4 of the Communal Land Act was further impugned as being discriminatory due to the absence of private individual ownership rights for inhabitants of communal lands.

He averred that section 6(1)(b) of the Communal Land Act enabled the excision of portions of communal land by the third respondent (the President of the Republic of Zimbabwe) and that this provision breached the property rights enshrined in section 71 of the Constitution. He tied this breach to the right to life as protected by section 48 of the Constitution. Furthermore, he asserted that the prospective loss of their ancestral land would negatively impact on their right to dignity, which he tied to their ancestral land.

The first appellant averred that their right to practise their culture, under section 63 of the Constitution, would be affected by their forced relocation from their ancestral lands. He posited that this also violated their dignity. He stated that the impugned provisions violated their community's fundamental human rights as enshrined in the Constitution.

The appellants categorized the application before the court a quo as an attempt to reverse two hundred years of colonialism. The first appellant alleged, that, there existed inconsistencies in the system of land tenure in that the law had permitted the expropriation of commercial farmland from white farmers through the Land Reform Programme, and yet, in contrast, the communal land ownership system remained intact. He asserted that section 6(1)(b) of the impugned Act enabled the expropriation of communal land without any due process and compensation.

He submitted, that, the evolution of the Communal Land Act from the purported racist Land Apportionment Act and the Tribal Trust Land Act are regarded as incontrovertible evidence of its unconstitutionality. He reiterated that the impugned sections were discriminatory as they breached the appellants right to equal protection of the law enshrined in section 56(1) of the Constitution.

He stated that the land was a source not only of their food but their medicine as well. He averred that the proposed irrigation scheme was dubious, and he felt it was just an excuse to scout for mineral deposits in the area. The first appellant also insisted that the true purpose of their displacement was to pave the way for lucerne production in favour of a company named DenDairy (Pvt) Ltd.

In addition, the first appellant averred that there was no prior consultation with the local people by the third respondent before the exercise of the prerogative under section 6(1)(b) of the Communal Land Act. This was said to be a breach of the Administrative Justice Act [Chapter 10:28] and, consequently, section 68 of the Constitution.

He, therefore, sought a retrospective order nullifying the notices published by the respondents earlier in the year.

The first appellant embarked on a rendition of the background of his community's occupation of the land. He submitted that the community's existence in the territory had long been established before the Mfecane upheaval in the 19th century. To that end, he attached a case study by J.H. Bannerman that provided an exposition of the history of the Hlengwe community. He recounted clashes with the imperial white community that attempted to establish irrigation systems in areas that contained the graves of their ancestors. The first appellant stated that these graveyards were now part of the land sought to be annexed by the third respondent. He asserted that the prospective dispossession would strip them of their cultural heritage.

The first appellant made extensive reference to international law in support of the application.

He indicated, that, the universal principle of free prior informed consent (hereinafter “fpic”) was not observed due to the outdated provisions of the Communal Land Act, which did not mandate their inclusion in the decision-making process.

In addition, the first appellant cited Article 17 of the Universal Declaration of Human Rights to support his assertion that the impugned Act was arbitrary in depriving them of their ancestral property. Further allusion was made to the International Covenant for Civil and Political Rights and the African Charter on Human and People's Rights in support of the application.

Concerning the issue of locus standi, the first appellant averred that the application was anchored on section 85(1)(d) of the Constitution. He asserted that it was a matter of public interest as his community had a direct interest in the matter. He conflated public interest with his community's interests. Part of his reasoning was that the land question was the essence of the struggle for liberation in Zimbabwe.

The second and third appellants also deposed to affidavits supporting the constitutional application in the court a quo. They reiterated the same concerns regarding the negative implications of the reservation of the land on their human dignity and other related cultural rights.

Accordingly, the appellants sought an order declaring sections 4 and 6(1)(b) of the Communal Land Act ultra vires the Constitution.

The respondents opposed the application before the High Court.

The fourth respondent (the Attorney General of Zimbabwe) deposed to an opposing affidavit on behalf of all the respondents. He raised a preliminary objection alleging the misjoinder of the second and third respondents. He asserted that he was also a victim of mis-joinder in the proceedings as he had no legal interest in the matter.

As to the merits, he refuted the appellants claim to ownership of the reserved piece of land, stating that their community was a mere beneficiary of the communal land whose title was vested in the President. He also refuted the appellants claim that the project's true intent was not an irrigation project. Lastly, he highlighted, that, contrary to the appellants averments, section 12 of the Communal Land Act provided for compensation in instances of displacement from communal areas.

He further asserted, that, the State had engaged the Chilonga community regarding the establishment of an irrigation project and that the proposed project was not aimed at displacing the appellants community. In addition, he highlighted that a relatively large portion of the target area was un-inhabited. He added that various similar developmental schemes had been established in other communal areas. The proposed project was, therefore, not out of the ordinary.

The respondents contended, that, the application was both frivolous and vexatious and lacked a solid basis as the impugned provisions did not militate against the fundamental rights of the appellants as enshrined in the Constitution.

He disputed the contention that the Communal Land Act was a colonial construct, and, in support of the legislation in question, stated that it served a practical purpose: to regulate the universal national development of communal land. He stressed the existence of a compensation clause under section 12 of the impugned Act, which was available and accessible to any potentially affected parties.

The appellants replicated and filed answering affidavits.

The first appellant objected to the failure on the part of the respondents to attach a notice of opposition to their opposing affidavit. He also took issue with the fourth respondent deposing to an affidavit on behalf of the first to third respondents.

Regarding the substance of the respondents opposition, the appellants averred that the fourth respondent lacked the capacity to make assertions on matters of government policy.

The first appellant reiterated his apprehension that valuable minerals had been discovered in the area and that this discovery constituted the primary reason for the drive to set aside the targeted portion of their ancestral communal land.

The appellants refuted the contention by the respondents that there was prior consultation with the community before the impugned actions were taken. They alleged that the community was not allowed to make any meaningful submissions when the Government delegation advised them of the plan to annex the disputed territory. Further, meetings with Government officials were characterized as hostile and futile.

Following the hearing of the matter, the court a quo dismissed the application.

The appellants argument regarding the unconstitutionality of the impugned provisions was rejected. The court was of the view, that, it was not sufficiently qualified to provide a holistic solution to their predicament. The court a quo opined that the executive and legislature were better placed to provide an effective remedy.

Dissatisfied with the disposition a quo, the appellants filed the instant appeal before the Court on the following grounds:

GROUNDS OF APPEAL

“The court a quo grossly erred and misdirected itself in failing to hold that section 4 and section 6(1)(b) of the Communal Land Act [Chapter 20:04] are ultra vires the provisions of section 48, section 51, section 72, section 63, section 56(1) and section 68 of the Constitution of Zimbabwe.

More fully, the court a quo grossly erred in failing to hold that the legal position codified in the Communal Land Act [Chapter 20:04] denying indigenous aboriginal black Zimbabweans the right to own their land was unconstitutional.

On a very technical level, the court a quo erred in implicitly holding that the provisions sought to be impugned were reasonable and justified in a democratic society, and, in making such a finding without expressly holding that section 4 and 6 of the Communal Land Act [Chapter 20:04] violated the applicants rights.

The court a quo further erred in failing to appreciate that it could have granted an order, declaring section 4 and section 6 of the Communal Land Act [Chapter 20:04] unconstitutional and then suspending such declaration in terms of section 175(6) of the Constitution, allowing the executive, and, indeed, Parliament time to consult or set up a Land Commission on a new system of land tenure consistent with the Constitution.

More fully, the court a quo thus erred in failing to appreciate that what was before it was a legal issue for the declaration of the appellants rights as opposed to the policy issue of a new tenure system for communal land.”

APPELLANTS SUBMISSIONS ON APPEAL

Counsel for the appellants made the following submissions:

He argued that the court a quo's determination was wrong in failing to find that sections 4 and 6(1)(b) of the Communal Land Act were unconstitutional. He submitted that the court a quo's judgment contained three contradictory views:

(i) The first was that the court a quo made positive findings as to the racist import of the impugned provisions.

(ii) Secondly, the court a quo held the matter to be one of policy, notwithstanding the mandate of courts to interpret laws. He vehemently objected to such an approach, regard being had to section 175(6) of the Constitution, which imbues the courts with authority to grant a 'just and equitable remedy.'

(iii) The third facet allegedly contained in the judgment related to the determination that there was nothing objectionable with vesting of land in the President as a consequence of section 4 of the aforesaid Act. Counsel for the appellants submitted that this was in contrast with the court a quo's earlier findings of racial connotations in the impugned provisions.

In addition, he contended that it was a condescending view that land barons would overrun communal lands should “natives” be granted title to their land.

To bolster his stance on the alleged racial connotations of the impugned provisions, counsel embarked on a rendition of the historical background giving rise to the present-day Communal Land Act. To this end, counsel for the appellants advanced that racist undertones were prevalent in the expropriation of communal lands from the native people of Zimbabwe. He implored the Court to consider judicial pronouncements in Latin America that dealt with the land previously excised from the indigenous people in that region during the colonial era. He argued that the appellants dignity was tied to their ancestral land.

He thus proposed that the course adopted in the Inter-American cases on similar circumstances be followed and given effect to.

As regards the remedy, counsel for the appellants submitted that the order of unconstitutionality, in this case, ought to be suspended to enable the legislature to make the relevant consultations in formulating a comprehensive land tenure system.

The Court noted, that, the appellants had not sought to impugn section 10 of the Communal Land Act and whether there existed a cause of action in the matter due to the failure to attack the particular statutory instrument that set aside the appellants land.

Counsel for the appellants submitted, that, despite the first respondent's use of section 10 of the Communal Lands Act in setting aside land for an irrigation scheme there was a cause of action before the Court. He argued, that, at the relevant time of filing in the court a quo, there were three statutory instruments in terms of which the first respondent had acted when he set aside the land in contention.

Counsel for the appellants advanced, that, there thus was a sufficient basis for challenging the constitutionality of sections 4 and 6 of the impugned Act.

RESPONDENTS SUBMISSIONS ON APPEAL

Per contra, counsel for the respondents submitted that the court's decision a quo could not be faulted. She submitted that this was a polycentric matter which was the sole preserve of the executive and legislature and that the impugned sections did not infringe the appellants property rights.

In addition, counsel for the respondents contended, that, the vesting of communal lands in the President was aimed at managing development in the country.

She further submitted, that, the irrigation scheme development project would not compel the relocation of the Hlengwe community from their ancestral lands as the land earmarked for the project is currently unoccupied. As a result, they would not be forcibly relocated; hence, the issue of violation of rights could not be sustained.

She posited, that, in the event that the community was relocated, section 12 of the Communal Land Act provides for appropriate compensation to be paid to persons affected by any such relocation. She further submitted, that, in terms of the Constitution, a person might be compulsorily deprived of their property in terms of a law of general application and that the Communal Land Act is such a law.

She argued, that, the Constitution sanctioned the purpose of the reservation of the land in question and that it was in the public interest, and, further, for the benefit of the local community as it paved the way for an irrigation scheme to be set up.

Counsel for the respondents averred, that, a notice for the reservation of the land was provided and the Hlengwe people had also participated in the deliberations and hence they had been able to approach the Court for recourse.

She argued further, that, communal land is vested in the President, who has the authority to permit land usage within the confines of the Communal Land Act. As a consequence, she submitted that all the procedures were followed.

She contended, that, the appellants failure to impugn section 10 of the Communal Lands Act left them bereft of a cause of action.

Counsel for the respondents insisted, that, the intended development would not affect the appellants. She further argued that the Communal Land Act provided adequate remedies in the unlikely event that they were dislodged from their homes.

In conclusion, she submitted that the matter was not yet ripe for determination and that the court a quo had not erred at all by finding that the matter is one of policy and a political issue. That the law currently vests all communal land in the President, who may set aside part of such land under the provisions of the Communal Land Act, was beyond dispute. She argued that whether or not that land should no longer remain vested in the President, and title given to communal land occupants, is a matter for the executive and Parliament.

She accordingly moved for the dismissal of the appeal.

ISSUES FOR DETERMINATION

The appellants have raised five grounds of appeal. However, from those grounds, only three arise issues for determination:

(i) The first is whether or not the court a quo erred in failing to find that sections 4 and 6 of the Communal Land Act were unconstitutional, as contended by the appellants. Aligned to this is whether the appellants claim to a right to property under section 71 of the Constitution is well founded.

(ii) The second is whether or not the court a quo correctly found that the matter was one of policy and entirely in the hands of the executive and the legislature.

(iii) The third and last issue is whether or not the court erred in concluding that the provisions were reasonable and justifiable in a democratic society, and, thus, did not violate the appellants constitutional rights as alleged.

THE LAW ON CONSTITUTIONAL CONSTRUCTION

The Constitution is a statute. As such, it is subject to the established canons of interpretation. Accordingly, a court must construe the provisions of the Constitution literally to give effect to its ordinary meaning unless doing so would result in an absurdity. Where, however, this is not possible, a court is enjoined to construe the provisions in a manner that gives effect to the rights being protected.

As submitted by counsel for the appellants, the Constitution is a product of negotiation between various stakeholders and thus embodies the values and aspirations of the people of Zimbabwe. It marks a departure from a colonial past. It has a Bill of Rights that is justiciable, that is, binding on all arms of the State and the citizenry at large.

With these principles in mind, the Court must then examine the constitutional provision to determine its meaning and interpret the challenged legislation to decide if the alleged violations have been established.

This accords with canons of interpretation and has been emphasized time and time by the courts in this jurisdiction in a long line of authorities.

The approach by the court was settled by GUBBAY CJ in In Re Munhumeso & Ors 1994 (1) ZLR 49 (S)..., where the learned former Chief Justice said the following:

“Two general interpretational principles are to be applied. The first was lucidly expressed by Georges CJ in Zimbabwe Township Developers (Pvt) Ltd v Lou's Shoes (Pvt) Ltd 1983 (2) ZLR 376 (S) at 382B-D; 1984 (2) SA 778 (ZS) at 783A-D, to this effect:

'Clearly, a litigant who asserts that an Act of Parliament or a Regulation is unconstitutional must show that it is. In such a case, the judicial body charged with deciding that issue must interpret the Constitution and determine its meaning and thereafter interpret the challenged piece of legislation to arrive at a conclusion as to whether it falls within that meaning or it does not.

The challenged piece of legislation may, however, be capable of more than one meaning.

If that is the position, then, if one possible interpretation falls within the meaning of the Constitution and others do not, then, the judicial body will presume that the law makers intended to act constitutionally and uphold the piece of legislation so interpreted.

This is one of the senses in which a presumption of constitutionality can be said to arise.

One does not interpret the Constitution in a restricted manner in order to accommodate the challenged legislation. The Constitution must be properly interpreted, adopting the approach accepted above. Thereafter, the challenged legislation is examined to discover whether it can be interpreted to fit into the framework of the Constitution.'

See also Minister of Home Affairs v Bickle & Ors 1983 (2) ZLR 431 (S) at 441E–H, 1984 (2) SA 39 (ZS) at 448F–G; S v A Juvenile 1989 (2) ZLR 61 (S) at 89C, 1990 (4) SA 151 (ZS) at 167G–H.”

The above authority has been followed and given effect by our courts in enforcing fundamental rights, even before the incidence of the current Constitution.

On several occasions, this court has pronounced upon the proper approach to constitutional construction embodying fundamental rights and protections. One of the leading authorities in this regard is Rattigan & ORS v Chief Immigration Officer & ORS 1994 (2) ZLR 54 (S) where this court said the following…,:

“THE RULE OF CONSTITUTIONAL CONSTRUCTION

This court has, on several occasions in the past, pronounced upon the proper approach to constitutional construction embodying fundamental rights and protections.

What is to be avoided is the imparting of a narrow, artificial, rigid, and pedantic interpretation; to be preferred is one which serves the interest of the Constitution and best carries out its objects and promotes its purpose.

All relevant provisions are to be considered as a whole, and, where rights and freedoms are conferred on persons, derogations therefrom, as far as the language permits, should be narrowly or strictly construed: see Min. of Home Affairs & Ors v Dabengwa & Anor 1982 (1) ZLR 236 (S) at 243G-244A, 1982 (4) SA 301 (ZS) at 306E-H; Bull v Min of Home Affairs 1986 (1) ZLR 202 (S) at 210E-211C; 1986 (3) SA 870 (ZS) at 880J-881D; Nkomo & Anor v A-G Zimbabwe & Ors 1993 (2) ZLR 422 (S); 1994 (1) SACR 302 (ZS) at 309E-F.

A recent reminder that courts cannot allow a Constitution to be 'a lifeless museum piece' but must continue to breathe life into it from time to time, when opportune to do so, was graphically expressed by Aguda JA in Dow v A-G [1992] LRC (Const) 623 (Botswana Court of Appeal) at 668F-H:

'…, the over-riding principle must be an adherence to the general picture presented by the Constitution into which each individual provision must fit in order to maintain, in essential details, the picture which the framers could have painted had they been faced with circumstances of today.

To hold otherwise would be to stultify the living Constitution in its growth.

It seems to me that a stultification of the Constitution must be prevented if this is possible without doing extreme violence to the language of the Constitution. I conceive it that the primary duty of the Judges is to make the Constitution grow and develop in order to meet the just demands and aspirations of an ever-developing society which is part of the wider and larger human society governed by some acceptable concepts of human dignity'.

See, too, Hunter et al v Southam Inc (1984) 9 CRR 355 (SC Canada) at 364; Govt of the Republic of Namibia & Anor v Cultura 2000 & Anor 1994 (1) SA 407 (NmS) at 418F-G.”

The appellants have alleged a violation of several provisions of the Constitution.

In considering the impugned legislative provisions, the task of the Court is to interpret the Constitution to safeguard and guarantee the protection and enforcement of enshrined fundamental rights under Chapter 4. Accordingly, the Court must adopt an approach that results in an expansive and broad interpretation of the provisions that protect human rights.

It is often said that the Constitution is a living document, and that the courts must strive to breathe life into its provisions. In this endeavour, the court must have reference to language in the provision and the historical origins of the concept thus enshrined. The provision has be construed in a manner that must give meaning and purpose to any other rights associated with any particular provisions. Thus, it is construed to reflect the citizens values and aspirations: see in this regard S v Zuma 1995 (2) SA 642 (CC); R v Big Mart Ltd (1985) 18 DLR (4th) 321.

It follows, therefore, that the Court must eschew a narrow and restrictive approach.

Consequently, the Court must consider and interpret all relevant provisions to give effect to the objects of the Constitution and best serve its interest and purpose.

Following up on the test established in In Re Munhumeso & Ors 1994 (1) ZLR 49 (S), a guiding tool for the Court was found in the case of Kawenda v Minister of Justice, Legal & Parliamentary Affairs & Ors CC03-22. In that case, MAKARAU JCC stated the following:

“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) at 383F; and Democratic Assembly for Restoration and Empowerment & Ors v Suanyama CC09-18.

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 remarks of MAKARAU JCC are apposite.

The steps to be followed have been settled and it will not add value to the above remarks to make any further comment. I will therefore proceed accordingly.

I commence with the claimed rights of ownership.

RIGHT TO OWNERSHIP UNDER SECTIONS 71 AND 72 OF THE CONSTITUTION

It seems to me that the fundamental rights upon which the appellants base their claim for breach of the Constitution have their genesis in an alleged right to ownership over the piece of communal land which the appellants occupy that has been set aside under the Communal Land Act. The right is claimed under section 71 of the Constitution. The appellants link the rights to dignity and life premised on the right under section 71.

An applicant who alleges a violation of a fundamental right must establish the existence of the right, that the provision under which the right is claimed applies to the applicant, and that the respondent has violated the right.

The appellants have alleged that they own the land they occupy in their affidavits. They allege that their right to ownership of this land is guaranteed under section 71(2) of the Constitution and they contend that this right has been violated by the setting aside of 12,940 hectares of the land they occupy. They aver that the vesting of the land in the President has violated this right to ownership. Furthermore, they claim the right to ownership due to continued occupation for several hundred years before the incidence of colonialism.

As a consequence, it seems to me that section 71 of the Constitution is the premise upon which all the other claimed rights must flow from. It is the provision that must inform the Court of the existence of the other alleged rights.

It is only logical that the inquiry into the dispute commence with an examination of section 71 of the Constitution and what rights it provides for and protects. That section provides, in relevant part, as follows:

“71 Property Rights

(1) (not relevant)

(2) Subject to section 72, every person has the right, in any part of Zimbabwe 'to acquire, hold, occupy, use, transfer, hypothecate, lease, or dispose of all forms of property, either individually or in association with others.'”…,.

Since the rights enshrined under section 71(2) of the Constitution are subject to section 72, before the Court can determine whether or not the appellants can claim a right under section 71(2), the Court inevitably must construe the provisions of section 72 of the Constitution.

In casu, the Constitution has made section 72 of the Constitution the dominant provision, and, the two sections must be construed together.

This is in tandem with the canons of interpretation that a court must construe all the relevant provisions of the Constitution to arrive at an interpretation that best serves the objects and interests of the Constitution.

Accordingly, the right to ownership of the land claimed by the appellants under section 71(2) of the Constitution must be construed in light of the provisions of section 72.

The section provides as follows:

“72 Rights to Agricultural Land

(1) In this section —
'agricultural land' means land used or suitable for agriculture, that is to say, for horticulture, viticulture, forestry, or aquaculture or for any purpose of husbandry, including —
(a) The keeping or breeding of livestock, game, poultry, animals, or bees; or

(b) The grazing of livestock or game; but does not include Communal Land or land within the boundaries of an urban local authority or within a township established under a law relating to town and country planning or as defined in a law relating to land survey;”…,.

The appellants seek to assert rights under the Bill of Rights in respect of ancestral land located within the country's rural areas.

The appellants claim that they survive on the land for all aspects of their livelihood.

This is not in dispute; their land use is in keeping and in accord with the law. As such, it is land that serves many purposes for the community that occupies it. It is where their residences are located. It is also land upon which the community farms and is thus a source of livelihood.

They aver that some of the inhabitants do contract farming for Delta Beverages Corporation and some are cotton producers.

Finally, when regard is had to the meaning ascribed to “agricultural land usage” their land constitutes farmland in that it is land used for agriculture, including the keeping of animals, whether domestic or wild, poultry, and all other facets that go with agricultural land.

Section 72 of the Constitution provides that land located in a communal land or within the boundaries of an urban local authority or a township is expressly excluded from the definition of what constitutes agricultural land.

It seems to me, that, section 72 of the Constitution has not provided for the right to occupy or use agricultural land.

What it has done in subsection (1) is to delineate what constitutes agricultural land. Most importantly for this dispute, section 72 of the Constitution has stated explicitly that rights to agricultural land in communal areas are to be governed by the Communal Land Act.

The appellants have not, either before this Court or even the court a quo, made any attempt to establish the alleged violation of the right sought to be relied on under section 71 of the Constitution.

They have also not linked their alleged right of ownership to the provisions of section 72 of the Constitution.

All that they contend is that the impugned provisions of the Communal Land Act continue to serve a colonial construct denying local indigenous people proprietary rights to land, which they allege are enshrined under section 71 of the Constitution.

Given that the land in issue is communal land, it is governed by the Communal Land Act and the right they assert is specifically to be found in that Act.

I am persuaded that the Constitution itself has excluded, in specific terms, a right to own land under section 71 of the Constitution for communal land dwellers except for the specific rights of occupation and ownership spelt out in the Communal Land Act itself.

In turn, despite section 71 of the Constitution being subject to section 72, section 72 of the Constitution has not spelt out any provisions related to communal land rights. This means, that, to assert a right under section 71 as read with section 72 of the Constitution, regard must be had to the Communal Land Act itself.

Therefore, this Court must construe all provisions relating to the occupation, use, and deprivation of land provided in the Communal Land Act. In my view, sections 4, 6, 8, 9, 10, and 12 of the Communal Land Act are relevant and pertinent in establishing the rights of dwellers in communal land.

These sections, in my view, confirm or lay to rest the allegations by the appellants of the violations of their fundamental rights on the implementation or exercise of statutory power by the President and the second respondent (Minister of Local Government and Public Works) respectively.

I therefore proceed to consider the law relating to their right to occupy land in communal areas.

RIGHTS OF OCCUPATION UNDER THE COMMUNAL LAND ACT

I start the inquiry by examining section 8 of the Communal Land Act. That section reads as follows:

“8. Occupation and use of Communal Land for agricultural or residential purposes

(1) Subject to this Act and the Regional, Town, and Country Planning Act [Chapter 29:12] and any order issued in terms thereof, a person may occupy and use Communal Land for agricultural or residential purposes with the consent of the rural district council established for the area concerned.

(2) Subject to subsection (3) and the Regional, Town, and Country Planning Act [Chapter 29:12] and any order issued in terms thereof, when granting consent in terms of subsection (1), a rural district council shall —

(a) Where appropriate, have regard to customary law relating to the allocation, occupation, and use of land in the area concerned; and

(a1) Consult and co-operate with the chief appointed to preside over the community concerned in terms of the Traditional Leaders Act [Chapter 29:17]; and

(b) Grant consent only to persons who, according to the customary law of the community that has traditionally and continuously occupied and used land in the area concerned, are regarded as forming part of such community or who, according to such customary law, may be permitted to occupy and use such land:

Provided that, if no community has traditionally and continuously occupied and used land in the area concerned, the district council shall grant consent only to such class of persons as the Minister, by notice in writing to the district council, may specify.

(3)…,. n/a

(4)…,.n/a

(5)…,.n/a

(6) Where a rural district council is established for any area of Communal Land or any area of Communal Land is incorporated within the area of a rural district council, any person lawfully occupying or using land in such area for agricultural or residential purposes on the date of such establishment or incorporation, as the case may be, shall be deemed to have obtained the consent of such rural district council for the purposes of subsection (1).”…,.

Thus, section 8 of the Communal Land Act gives rights of occupation to community members that have occupied the land, traditionally and continuously, for extended periods.

My reading of the section leads me to conclude, that, a community member in occupation of such land only has to prove that he or she is a member of a community that has traditionally and continuously been in occupation of such land.

That established an entitlement to occupation.

All that is required is that the person is part of a community that has continuously and traditionally occupied the land.

However, a community must have services through schools, churches, hospitals, and other amenities.

The law provides the grant of permits for occupation by persons or parties who are not part of the traditional dwellers. The provision that permits such rights is found in section 9 of the Communal Land Act. It provides:

“9. Permits to occupy and use Communal Land

(1) A rural district council may, with the approval of the Minister, issue a permit authorizing any person or class of persons to occupy and use, subject to the Regional, Town, and Country Planning Act [Chapter 29:12] and any order issued in terms thereof, any portion of Communal Land within the area of such rural district council, where such occupation or use is for any of the following purposes —

(a) Administrative purposes of the State or a local or like authority;

(b) Religious or educational purposes in the interests of inhabitants of the area concerned;

(c) Hospitals, clinics, or other such establishments for the benefit of inhabitants of the area concerned;

(d) Hotels, shops, or other business premises;

(e) Any other purpose whatsoever which, in the opinion of the rural district council, is in the interests of inhabitants of the area concerned;”

Although the word “permit” has not been defined in the Communal Land Act, section 2 defines use as:

“use, in relation to Communal Land, includes the erection of any building or enclosure, ploughing, hoeing, the cutting of vegetation, the depasturing of animals or the taking of sand, stone or other materials therefrom.”

This definition accords with the purposes or definition of agricultural land in section 72 of the Constitution.

The appellants occupy land that they utilise both for agricultural and residential purposes. Their right to occupy, as a community, can only be in accordance with section 8 of the Communal Land Act.

A perusal of the section reveals that the law recognizes the right of a community to occupy communal land that such a community has occupied continuously. It does not define the amount or length of time for such occupation.

When regard is had to section 71(1) of the Constitution, it becomes clear that the provisions of section 8(1) of the Communal Land Act are not only consistent with, but give effect to the right to property being claimed by the appellants.

That right is not restricted to ownership. It is broader than ownership. It is the right to acquire, hold, occupy, use, transfer, hypothecate, lease, or dispose of all forms of property.

The suggestion by the appellants that the right in section 71 of the Constitution is strictly that of individual private ownership of land, wherever situate, is not borne out by the text of the constitutional provision being relied on.

The appellants do not challenge the right accorded under the governing Act.

They do not suggest that this right is not in accordance with that enshrined under section 71(2) of the Constitution or that they are not permitted to acquire, hold, use, transfer, hypothecate, lease, or dispose of land within the boundaries of communal land.

It is apparent from the above, that, the occupation of communal land is entirely consistent with the occupation of agricultural land under section 72 of the Constitution.

An occupier requires permission or consent from an authority duly empowered by an Act of Parliament.

Thus, there is no discernible difference between an occupier of communal land and an occupier of agricultural land. This is because both classifications of land are vested in the State.

The further contention by the appellants, that the right in section 71 of the Constitution relates to individual ownership of property, is incorrect.

Individuals or persons can exercise the right in association with others.

In terms of section 8(2)(b) of the Communal Land Act, the right of a community that has traditionally and continuously occupied land located in communal lands is guaranteed by the denial of permits of occupation to persons who have not continuously and traditionally been in occupation thereof.

In addition, it is clear that section 8(2)(a) and (b) of the Communal Land Act accord preference to the customs of the community that has been in occupation.

The special provision ensures that a rural district council, in granting consent to dwellers, must have regard to customary law.

Therefore, the customs of a community take precedence when the local authority is making decisions affecting the community itself. In addition, where a community has been in continuous occupation of communal land, a district council shall deem that such community has the appropriate consent to occupy the same.

It, therefore, stands to reason that the same meaning should be ascribed to the word permit in section 8 of the Communal Land Act.

Consequently, contrary to the position adopted by the appellants, the rights they claim are fully protected under sections 8 and 9 of the Communal Land Act. The Act is not inconsistent with the Constitution, as suggested by the appellants. A careful reading of section 8(2)(b) of the Communal Land Act, taken as a whole, establishes that the law has been crafted to protect the community's rights to occupy communal land.

It is the case for the appellants that the beneficiaries of the Land Reform Programme have better conditions and rights in relation to the agricultural land allocated to them under the aegis of section 72 of the Constitution.

The right to occupation of agricultural land is not found in section 72 of the Constitution. It is provided for in the Gazetted Land (Consequential Provisions) Act [Chapter 20:28].

It provides as follows in relevant part:

“3. Occupation of Gazetted land without lawful authority

(1) Subject to this section, no person may hold, use or occupy Gazetted land without lawful authority.”

This provision must be read together with sub-sections (4) and (6) of section 72 of the Constitution in so far as these subsections set out the status of agricultural land within the country. Subsections (4) and (6) provide as follows:

“(4) All agricultural land which —
(a) Was itemised in Schedule 7 to the former Constitution; or
(b) Before the effective date, was identified in terms of section 16B(2)(a)(ii) or (iii) of the former Constitution;
continues to be vested in the State, and no compensation is payable in respect of its acquisition except for improvements effected on it before its acquisition.
(5)…,. (not relevant)
(6) An Act of Parliament may make it an offence for any person, without lawful authority, to possess or occupy agricultural land referred to in this section or other State land.”

The above provisions dispel the contention by the appellants, that, beneficiaries under the Land Reform Programme have rights of private and individual ownership over the land they have been allocated.

All acquired agricultural land is vested in the State.

Beneficiaries can only occupy land in terms of a document granting such beneficiaries lawful authority for such occupation.

What constitutes lawful authority has been decided by this Court in several authorities. The meaning to be ascribed to lawful authority was set out in the seminal judgment by this Court in Taylor-Freeme v The Senior Magistrate Chinhoyi & Anor CC10-14, wherein CHIDYAUSIKU CJ remarked as follows:

“I finally turn to deal with the issue of what constitutes 'lawful authority' and whether the applicant had 'lawful authority' to occupy the farm.

The clear and unambiguous meaning of section 2(1) of the Act is that 'lawful authority' means an offer letter, a permit and a land settlement lease. Nothing more, nothing less. A letter from the late Vice President, the Presidium, or any other member of the Executive does not constitute 'lawful authority' in terms of the Act.

In the case of Commercial Farmers Union and Ors v The Minister of Lands and Rural Resettlement and Ors (supra), this Court had this to say at p19 of the cyclostyled judgment:

'The Legislature, in enacting the above provision clearly intended to confer on the acquiring authority the power to issue to individuals offer letters which would entitle the individuals to occupy and use the land described in those offer letters.

The draftsman could have used better language to convey the legislative intent, but, there can be no doubt that section 2 of the Act confers on the acquiring authority the power to allocate land using the medium of an offer letter.

This provision is not in any way inconsistent with sections 16A and 16B of the Constitution.

If anything, it fits in well with the overall scheme envisaged in sections 16A and 16B of the Constitution, which is that the acquiring authority acquires land and re-allocates the land so acquired. The acquisition of land and its redistribution lies at the heart of the land reform programme. I have no doubt that the Minister, as the acquiring authority, can redistribute land he has acquired in terms of section 16B of the Constitution by means of the following documents -

(a) An offer letter;
(b) A permit; and
(c) A land settlement lease.

The Minister is entitled to issue a land settlement lease in terms of section 8 of the Land Settlement Act [Cap 20:01]. However, if the Minister allocates land by way of a land settlement lease, in terms of section 8 of the Land Settlement Act, he is enjoined to comply with the other provisions of that Act, such as section 9, which requires him to consult the Land Settlement Board, which obviously has to be in existence.

I do not accept the contention by the applicants that the Minister can only allocate acquired land by way of a land settlement lease which he presently cannot do because there is no Land Settlement Board in existence.

The Minister has an unfettered choice as to which method he uses in the allocation of land to individuals. He can allocate the land by way of an offer letter or by way of a permit or by way of a land settlement lease.

It is entirely up to the Minister to choose which method to use.

I am not persuaded by the argument, that, because the offer letter is not specifically provided for in the Constitution it cannot be used as a means of allocating land to individuals.

I am satisfied that the Minister can issue an offer letter as a means of allocating acquired land to an individual.

Having concluded that the Minister has the legal power or authority to issue an offer letter, a permit, or a land settlement lease, it follows that the holders of those documents have the legal authority to occupy and use the land allocated to them by the Minister in terms of the offer letter, permit, or land settlement lease.'

'Lawful authority' means an offer letter, a permit, and a land settlement lease.

The documents attached to the Defence Outline are not offer letters, permits, or land settlement leases issued by the acquiring authority. They do not constitute 'lawful authority' providing a defence to the charge the applicant is facing.”...,.

Both section 72 of the Constitution and the Communal Land Act have delineated land use, in the case of former agricultural land and communal land respectively. Both classifications are specific to land located within the rural areas and where the communities utilise the land for agriculture: that is to say;

“For horticulture, viticulture, forestry or aquaculture or for any purpose of husbandry, including —
(a) The keeping or breeding of livestock, game, poultry, animals, or bees; or
(b) The grazing of livestock or game;.”

This definition of what constitutes “agriculture” accords with that found in the Constitution in relation to agricultural land. On the other hand, the Communal Land Act, in section 8(1), provides that a rural district council may grant consent to any person to occupy and use Communal Land for agricultural or residential purposes.

It seems to me that the appellants, in contending that their right to occupy land in the communal areas is lesser than that of beneficiaries under the Land Reform Programme, have completely misconstrued the constitutional provisions that apply to the two regimes.

The primary purpose of land use in communal land is agricultural as well as residential. Agricultural land has been codified, and its occupation and use are determined by the definition accorded to it under the governing legislation.

On a proper construction, the law on the occupation of State land, which includes communal land and agricultural land under section 72 of the Constitution, makes it clear that occupation of land utilised for agricultural purposes must be in terms of lawful authority under section 72 of the Constitution or the consent of a rural council under sections 8 and 9 of the Communal Land Act.

Thus, occupation is at the pleasure of the State.

It is apparent from the above that the occupation of communal land is entirely consistent with the occupation of agricultural land under section 72 of the Constitution. An occupier in both instances requires permission or consent from an authority duly empowered by an Act of Parliament.

As the law currently provides, occupiers of agricultural land under the Land Reform Programme and those occupying pieces of land situate in a communal area both occupy State land. They are given authority or permission to occupy by statute.

None of the occupants own the land in their own right.

Therefore, there is no apparent difference between occupiers of land found in communal lands and those in occupation of agricultural land as defined in section 72 of the Constitution. Thus, there is no discernible difference between an occupier of communal land and an occupier of agricultural land.

This is because, as earlier explained, both classifications of land are ultimately vested in the State.

View Appeal
CC03-23 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, CLIMATE AND RURAL SETTLEMENT and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

FACTUAL BACKGROUND

GROUNDS OF APPEAL

APPELLANTS SUBMISSIONS ON APPEAL

RESPONDENTS SUBMISSIONS ON APPEAL

ISSUES FOR DETERMINATION

Following up on the test established in In Re Munhumeso & Ors 1994 (1) ZLR 49 (S), a guiding tool for the Court was found in the case of Kawenda v Minister of Justice, Legal & Parliamentary Affairs & Ors CC03-22. In that case, MAKARAU JCC stated the following:

“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) at 383F; and Democratic Assembly for Restoration and Empowerment & Ors v Suanyama CC09-18.

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 remarks of MAKARAU JCC are apposite.

The steps to be followed have been settled and it will not add value to the above remarks to make any further comment. I will therefore proceed accordingly.

I commence with the claimed rights of ownership.

RIGHT TO OWNERSHIP UNDER SECTIONS 71 AND 72 OF THE CONSTITUTION

“71 Property Rights

(1) (not relevant)

“72 Rights to Agricultural Land

RIGHTS OF OCCUPATION UNDER THE COMMUNAL LAND ACT

I start the inquiry by examining section 8 of the Communal Land Act. That section reads as follows:

“8. Occupation and use of Communal Land for agricultural or residential purposes

(a) Where appropriate, have regard to customary law relating to the allocation, occupation, and use of land in the area concerned; and

(a1) Consult and co-operate with the chief appointed to preside over the community concerned in terms of the Traditional Leaders Act [Chapter 29:17]; and

(3)…,. n/a

(4)…,.n/a

(5)…,.n/a

“9. Permits to occupy and use Communal Land

Although the word “permit” has not been defined in the Communal Land Act, section 2 defines use as:

That right is not restricted to ownership. It is broader than ownership. It is the right to acquire, hold, occupy, use, transfer, hypothecate, lease, or dispose of all forms of property.

It is apparent from the above, that, the occupation of communal land is entirely consistent with the occupation of agricultural land under section 72 of the Constitution....,.

The further contention by the appellants, that the right in section 71 of the Constitution relates to individual ownership of property, is incorrect.

Individuals or persons can exercise the right in association with others....,.

Section 8 of the Communal Land Act recognizes the right of people who have traditionally and continuously occupied land in communal areas. Such rights are distinct and utterly disparate from the rights of holders of property in urban areas.

While rights of occupation and use under the Communal Land Act are community-based, the rights to own and occupy urban areas are primarily based on individual rights.

The latter comprises a whole spectrum of categories, which are provided for in section 71(2) of the Constitution and those rights are not the premise upon which the appellants approach the Court for relief and it is not germane to discuss them for the purpose of this dispute.

Their cause of action is primarily based on the community's right to occupy or own land....,.

It appears, however, that, the main bone of contention of the appellants is not concerned with occupation. Instead, their grievance is that the law, as it relates to rights under communal land, does not permit the inhabitants to own the land in their personal right.

The appellants contend, that, there is no reason why community dwellers in their particular situation should not be granted rights to own pieces of land, as is the case in people who reside in urban areas.

Thus, it is contended that the law is discriminatory against them and violates section 56(1) of the Constitution.

Section 56 of the Constitution provides:

“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) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural, and social spheres.

(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.”

The appellants have not specified the subsection they rely on, but, from a general consideration of their argument, it is clear that they are invoking section 56(1) of the Constitution as the premise upon which their claim for relief is based.

The ambit of section 56(1) was in this jurisdiction, in Nkomo v Minister of Local Government, Rural & Urban Development & Ors CC06-16. ZIYAMBI JCC stated:

“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.”

The meaning to be ascribed to section 56(1) of the Constitution was re-affirmed in the case of Mupungu v Minister of Justice, Legal, and Parliamentary Affairs & Ors CC07-21. Commenting on the nature of the right enshrined in section 56(1), PATEL JCC posited the following:

“As regards section 56(1), 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).

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...,. In essence, section 56(1) 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).”

In casu, the appellants compare their position to that of the indigenous population who are afforded ownership rights in areas such as Borrowdale.

They had perforce to demonstrate that the law treats dwellers in communal areas differently from those in urban areas.

However, in my view, the critical distinction is that urban areas do not constitute agricultural land.

As such, the allegation of unequal treatment of persons in a similar position cannot be sustained inasmuch as a comparison of ownership in Borrowdale or urban areas is concerned....,.

Section 6 of the Communal Land Act...,. reads as follows:

“6. Additions to and subtractions from Communal Land

(1) Subject to this Act, the Forest Act [Chapter 19:05] and the Parks and Wild Life Act [Chapter 20:14], the President may, by statutory instrument —
(a) Declare that any State Land shall form part of Communal Land;

(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.

(2) Whenever the President has published a declaration in terms of subsection (1), the Minister shall, by statutory instrument, amend the instrument published in terms of subsection (1) or (3) of section five, as the case may be, to reflect such declaration.

(3) Whenever any land ceases to form part of Communal Land in terms of a declaration published in terms of subsection (1), such land shall thereupon become State land until it is granted, sold or otherwise disposed of in terms of this Act or any other law.”…,.

A perusal of section 6(3) of the Communal Land Act puts paid to the contention by the appellants, that, as a community occupying communal land, the law discriminates against them by not giving them the right to ownership of land as individuals.

The provision empowers the President to excise land from within the boundaries of a communal area. Once a declaration to that effect has been made, the land becomes State land which may then be granted, sold, or disposed of in any other manner under the Communal Land Act or any other law within the country....,.

In contending that the law governing communal land was inimical to rights of individual ownership, the appellants ought to have invited the Court to construe this provision against the law that they contend permits private ownership to pieces of land in urban areas.

They have not established that their rights, as dwellers of communal land, are discriminatory against them as opposed to those of urban dwellers.

This would have necessitated a comparison of the relevant laws and an analysis showing discrimination within the law against communal land dwellers as opposed to urban dwellers.

The appellants do not even advert to the law governing ownership in areas other than communal land.

In this regard, the Court finds that the appellants have not established the allegation that section 6 of the Communal Land Act violates section 56(1) of the Constitution.

CC05-15 : TOUR OPERATORS BUSINESS ASSOCIATION OF ZIMBABWE vs MOTOR INSURANCE POOL and ZIMBABWE REVENUE AUTHORITY and INSURANCE AND PENSIONS COMMISSION and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

The applicant, Tour Operators Business Association of Zimbabwe (TOBAZ), is an association of registered tour operators. Among other things, it buys and arranges insurance services for foreign tourists, including motor vehicle insurance for foreign vehicles entering Zimbabwe.

The first respondent is named the Motor Insurance Pool (the MIP) and is an association of insurers.

The second respondent is the Zimbabwe Revenue Authority (ZIMRA).

The third respondent is the Insurance and Pensions Commission, a statutory body responsible for the regulation of insurance and pension business in Zimbabwe.

The Attorney General is cited as an interested party who might wish to intervene in these proceedings.

It is common cause that foreign vehicles are required, by law, to have a temporary import permit coupled with valid insurance cover for the duration of the permit.

According to the Tour Operators Business Association of Zimbabwe, its members were previously entitled to arrange temporary insurance cover, and did, in fact, do so until February 2010, when the Motor Insurance Pool and the Zimbabwe Revenue Authority concluded an agency agreement, with the tacit concurrence of the Insurance and Pensions Commission, the purpose of which was to confine the issuance of such cover to the Motor Insurance Pool and the Zimbabwe Revenue Authority.

The latter then published a notice to that effect and proceeded to issue insurance cover on behalf of the former.

The Tour Operators Business Association of Zimbabwe avers that the Motor Insurance Pool, as an association of insurers, cannot itself issue insurance cover or authorise the Zimbabwe Revenue Authority to do so as its agent. This is because they do not qualify as licensed insurers under the Insurance Act [Chapter 24:07] or approved insurers under the Road Traffic Act [Chapter 13:11].

Their agency agreement is not only ultra vires those statutes but also creates a monopoly, in breach of the Competition Act [Chapter 14:28].

In the constitutional context, the agreement operates to infringe its members freedom of profession, trade or occupation as well as their right to equal protection of the law. It also violates the freedom of contract implicit in the freedom of association by imposing a contracting party on foreign motorists.

The relief sought by the Tour Operators Business Association of Zimbabwe is a declaratur that it and its members have been denied the above-mentioned constitutional rights and that the agency agreement between the Motor Insurance Pool and the Zimbabwe Revenue Authority is consequently null and void.

The Tour Operators Business Association of Zimbabwe also seeks a mandamus compelling the Zimbabwe Revenue Authority to accept insurance cover obtained from any registered, licensed, and approved insurer.

The Motor Insurance Pool is an association formed under an agreement concluded between several registered insurers and executed on 16 December 1964. Pursuant to its formation, a further agreement was concluded, on 4 January 1965, between the Motor Insurance Pool and the then Minister of Roads and Road Traffic.

In terms of this later agreement, nominated members of the Motor Insurance Pool were authorized to issue temporary insurance permits to motorists entering the country. The effect of the agreement was to approve the members of the Motor Insurance Pool as issuers of policies of insurance in respect of foreign motor vehicles, in terms of the precursor to section 23(1)(a)(i) of the Road Traffic Act, for the purposes of Part IV of the Road Traffic Act.

The Motor Insurance Pool avers, that, its registered and approved members are legally authorised to issue temporary insurance permits and collect premiums, either directly by themselves or through the Zimbabwe Revenue Authority as the duly appointed agent of the Motor Insurance Pool.

Insurance cover for foreign motor vehicles represents a very small section of the motor insurance market. Thus, its 2010 agency agreement with the Zimbabwe Revenue Authority does not constitute a monopoly, nor does it contravene the Insurance Act, the Road Traffic Act, or the Competition Act.

Moreover, the members of the Tour Operators Business Association of Zimbabwe are not brokers or providers of insurance in terms of its own Constitution. Therefore, the agency agreement does not in any way restrict their right to carry on any trade or profession as brokers or insurers.

The Insurance and Pensions Commission, in its opposing papers, abides by the grounds of opposition advanced by the Motor Insurance Pool.

The Zimbabwe Revenue Authority takes the point in limine, that, the administration of motor insurance cover for foreign motor vehicles is the prerogative of the Minister of Transport who appoints approved parties to implement the relevant provisions of the Road Traffic Act. Consequently, he should have been cited as a party to these proceedings, and the failure to do so constitutes a material non-joinder.

It is further averred, that, the Motor Insurance Pool, acting through its members, acquired the requisite statutory approval to issue temporary insurance cover for foreign motor vehicles. Thereafter, it duly mandated the Zimbabwe Revenue Authority as its agent to issue insurance cover and collect premiums on its behalf.

In contrast, the Tour Operators Business Association of Zimbabwe and its members are not authorized to issue short term insurance cover to foreign motorists. It should therefore apply to the Minister of Transport for approval under the Road Traffic Act if its members wish to venture into motor insurance.

In its answering affidavit, the Tour Operators Business Association of Zimbabwe adopts a more limited approach to its insurance activities.

It accepts, that, it and its members are not registered insurers engaged in the business of issuing insurance policies. Its members do not wish to issue such policies but merely to arrange insurance cover for local and foreign tourists. It contends that they have a right to do so and cannot be restricted in that regard.

The issues for determination in this matter, as I perceive them, are as follows:

(i) Whether the Minister of Transport (the Minister) should have been joined in these proceedings.

(ii) Whether the Tour Operators Business Association of Zimbabwe and/or its members have the requisite locus standi to bring the present application.

(iii) Whether the Tour Operators Business Association of Zimbabwe and its members are entitled to the relief that they seek.

(iv) Whether the agency agreement between the Motor Insurance Pool and the Zimbabwe Revenue Authority operates to violate the constitutional rights of the Tour Operators Business Association of Zimbabwe, its members, and local or foreign motorists. (This question only arises for determination if the first three issues are decided in favour of the Tour Operators Business Association of Zimbabwe)....,.

The Applicant's Locus Standi

Section 85(1) of the Constitution delineates the categories of legal standing available for the enforcement of fundamental human rights and freedoms as follows:

“(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.”

Counsel for the applicant submits that this application is instituted on two different bases recognised in subsection (1) of section 85 of the Constitution:

(i) The first arises from paragraph (e) of that subsection, where the Tour Operators Business Association of Zimbabwe is acting in the interests of its members to protect their right to equal protection and benefit of the law, under section 56 of the Constitution, and their freedom of profession, trade or occupation, under section 64 of the Constitution.

(ii) The second basis accrues from paragraphs (c) and (d), where the Tour Operators Business Association of Zimbabwe is acting in the interests of a group or class of persons, and in the public interest, to protect the rights of foreign motorists, and the general public, to the freedom of contract, implicit in the freedom of association under section 58 of the Constitution, so as to contract with insurers of their choice and thereby obtain cheaper insurance cover.

The fundamental rights and freedoms invoked by the Tour Operators Business Association of Zimbabwe are enunciated in the Constitution as follows:

“56(1) All persons are equal before the law and have the right to equal protection and benefit of the law.”

“58(1) Every person has the right to freedom of assembly and association, and the right not to assemble or associate with others.

(2) No person may be compelled to belong to an association or to attend a meeting or gathering.”

“64. Every person has the right to choose and carry on any profession, trade or occupation, but, the practice of a profession, trade, or occupation may be regulated by law.”

According to counsel for the applicant, the violation of the rights enshrined in these provisions stems from the monopolistic and restrictive arrangement between the Motor Insurance Pool and the Zimbabwe Revenue Authority, which hinders the members of the Tour Operators Business Association of Zimbabwe from obtaining insurance cover specifically for their foreign clients. It also operates to restrict access to insurance cover generally by members of the motoring public.

As regards the first basis proffered by the Tour Operators Business Association of Zimbabwe for its legal standing in this matter, it is necessary to consider the provisions of its own Constitution which was adopted on 17 August 2012.

In terms of clause 3(a), the principal objective of the association is to promote tourism activities in the country and the business interests of its members in the tourism industry. Its other objectives elaborate this principal objective and are essentially incidental to that objective. Under clause 4(a), the membership of the Tour Operators Business Association of Zimbabwe consists of companies, bodies or organisations, and individuals that are in the tourism industry.

As is indisputably evident from the provisions of its Constitution, the objectives of the Tour Operators Business Association of Zimbabwe, and the business of its members, are confined to the tourism industry. They are not registered insurers or brokers or licensed insurance agents. They have no legal interest in the issuance of insurance or insurance brokering or in any other form of insurance activity.

Their constituent instrument is entirely silent in that regard.

To put it colloquially, insurance is none of their business.

On this premise, it is not possible to ascribe to the Tour Operators Business Association of Zimbabwe any legal standing to enforce its members right to equal protection and benefit of the law or their freedom to trade in the specific sphere of insurance.

CC12-15 : LOVENESS MUDZURU and RUVIMBO TSOPODZI vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS N.O. and MINISTER OF WOMEN'S AFFAIRS, GENDER & COMMUNITY DEVELOPMENT and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

The two applicants are young women aged 19 and 18 years respectively. They have approached this Court in terms of section 85(1) of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 (“the Constitution”) which came into force on 22 May 2013.

They complain about the infringement of the fundamental rights of girl children subjected to early marriages and seek a declaratory order in the terms that:

“1. The effect of section 78(1) of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 is to set 18 years as the minimum age of marriage in Zimbabwe.

2. No person, male or female, in Zimbabwe, may enter into any marriage including an unregistered customary law union or any other union including one arising out of religion or a religious rite before attaining the age of eighteen (18).

3. Section 22(1) of the Marriage Act [Chapter 5:11] is unconstitutional.

4. The Customary Marriages Act [Chapter 5:07] is unconstitutional in that it does not provide for a minimum age limit of eighteen (18) years in respect of any marriage contracted under the same.

5. The respondents pay costs of suit.”

The application arose out of the interpretation and application by the applicants, on legal advice, of section 78(1) as read with section 81(1) of the Constitution.

Section 78(1) of the Constitution is one of the provisions in Chapter 4 which enshrine fundamental human rights and freedoms. It provides:

“78 Marriage Rights

(1) Every person who has attained the age of eighteen years has the right to found a family.

(2) No person may be compelled to enter into marriage against their will.

(3) Persons of the same sex are prohibited from marrying each other.”

Section 81(1) of the Constitution enshrines the fundamental rights of the child.

The fundamental rights, the alleged infringement of which are relevant to the determination of the issues raised by the application, are:

“81 Rights of Children

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

(a) To equal treatment before the law, including the right to be heard;

(b)…,.

(c)…,.

(d) To family or parental care or to appropriate care when removed from the family environment;

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

(f) To education, health care services, nutrition, and shelter;

(g)…,.

(h)…,.

(2) A child's best interests are paramount in every matter concerning the child.

(3) Children are entitled to adequate protection by the courts, in particular, by the High Court as their upper guardian.”

The protection of the fundamental rights of the child is guaranteed under section 44 of the Constitution.

The provision imposes an obligation on the State and every person, including juristic persons, and every institution and agency of the Government, at every level, to respect, protect, promote and fulfil the rights and freedoms set out in Chapter 4.

The applicants contend that on a broad, generous, and purposive interpretation of section 78(1) as read with section 81(1) of the Constitution, the age of eighteen years has become the minimum age for marriage in Zimbabwe.

They argued, that, section 78(1) of the Constitution cannot be subjected to a strict, narrow, and literal interpretation to determine its meaning if regard is had to the contents of similar provisions on marriage and family rights found in international human rights instruments from which section 78(1) of the Constitution derives inspiration.

The applicants claimed the right to approach the court seeking the relief they seek under section 85(1)(a) and (d) of the Constitution. In paragraph 16 of the founding affidavit, the first applicant, with whom the second applicant agreed, states:

“16:…,. The issues I raise below are in the public interest, and, therefore, I bring this application in terms of section 85(1)(a) and (d) of the Constitution of Zimbabwe.”

In paragraph 21 of the founding affidavit, the first applicant states:

“21. The instant application is an important public interest application that seeks to challenge the law in so far as it relates to child marriages in Zimbabwe. It is motivated by my desire to protect the interests of children in Zimbabwe.”

At the time sections 78(1) and 81(1) of the Constitution came into force, section 22(1) of the Marriage Act [Chapter 5:11] provided, that, a girl who had attained the age of sixteen years was capable of contracting a valid marriage. She had to obtain the consent, in writing, to the solemnization of the marriage of persons who were, at the time of the proposed marriage, her legal guardians, or, where she had only one legal guardian, the consent, in writing, of such legal guardian.

A boy under the age of eighteen years and a girl under the age of sixteen years had no capacity to contract a valid marriage except with the written permission of the Minister of Justice, Legal and Parliamentary Affairs (“the Minister”).

A child was defined under section 2 of the Child Abduction Act [Chapter 5:05] and section 2 of the Children's Protection and Adoption Act [Chapter 5:06] to be a person under the age of sixteen years.

The applicants contend that since “a child” is now defined by section 81(1) of the Constitution to mean a girl and a boy under the age of eighteen years, no child has the capacity to enter into a valid marriage in Zimbabwe since the coming into force of sections 78(1) and 81(1) of the Constitution on 22 May 2013.

They contend further, that, section 22(1) of the Marriage Act, or any other law which authorises a girl under the age of eighteen years to marry, infringes the fundamental right of the girl child to equal treatment before the law enshrined in section 81(1)(a) of the Constitution.

The argument was that section 22(1) of the Marriage Act exposes the girl child to the horrific consequences of early marriage which are the very injuries against which the fundamental rights are intended to protect every child.

The respondents opposed the application and the granting of the relief sought by the applicants on two alternative grounds.

They took as a point in limine the contention, that, the applicants lacked the right to approach the court claiming the relief sought.

The argument made on behalf of the respondents was that although the applicants claimed to have approached the court in terms of section 85(1)(a) of the Constitution, they did not allege that any of their own interests was adversely affected by the alleged infringement of the fundamental rights of the girl child.

The respondents pointed to the fact, that, none of the applicants alleged that she entered into marriage with the boy who made her pregnant. They said that the applicants alleged that they got pregnant, stopped going to school, and went to live with the boys concerned at their parents homes. The applicants did not suggest that they entered into unregistered customary law unions.

The argument was that the applicants were no longer children protected from the consequences of early marriage by the fundamental rights of the child enshrined in section 81(1) of the Constitution.

On the question whether the applicants had locus standi to approach the court, acting in the public interest, under section 85(1)(d) of the Constitution, the respondents contend that the applicants failed to satisfy the requirements of standing under the relevant provision.

They alleged in the opposing affidavits, that, the applicants were required to give particulars of girl children whose fundamental rights had been infringed and on whose behalf they purported to act.

It was common cause, that, the applicants made no reference, in the grounds of the application, to any particular girl or girls whose rights had been, were being, or were likely to be infringed by being subjected to child marriage in terms of section 22(1) of the Marriage Act or any other law.

The argument was that the applicants had not produced facts to support their claim to locus standi under section 85(1)(d) of the Constitution.

The grounds of opposition to the application on the merits are straight forward.

The respondents denied that section 78(1) of the Constitution has the effect of setting the age of eighteen years as the minimum age for marriage in Zimbabwe. Their reason for the denial was that section 78(1) of the Constitution gives a person who has attained the age of eighteen the “right to found a family.”

The contention is that the meaning of section 78(1) of the Constitution is apparent from the grammatical and ordinary meaning of the language used in giving the “right to found a family.”

The respondents contend, further, that section 78(1) of the Constitution does not give a person who has attained the age of eighteen years the “right to enter into marriage.”

The minor premise on which the contention is based is that the “right to found a family” does not imply the right to marry.

The respondents supported their denial of the contention that section 78(1) of the Constitution sets the age of eighteen years as the minimum age of marriage by the argument advanced on their behalf, that, section 78(1) of the Constitution is not amenable to a broad, generous, and purposive interpretation in the determination of its meaning.

The argument was that it is only accommodative of a literal interpretation.

The effect of the respondents argument was that the question of interpretation did not arise as the words used were clear and un-ambiguous.

Having denied the allegation that section 78(1) of the Constitution sets the age of eighteen years as the minimum age for marriage, the respondents went on to deny that section 22(1) of the Marriage Act, or any other law which authorizes a girl child who has attained the age of sixteen years to marry, contravenes section 78(1) of the Constitution.

They raised as a rationale for the difference in the treatment of a girl child and a boy child under section 22(1) of the Marriage Act - the old notion that a girl matures physiologically and psychologically earlier than a boy.

They put forward the notion of the alleged difference in the rates of maturity in the growth and development of girls and boys as justification for legislation which condemns a girl child, under the pretext of marriage, to a life of sexual exploitation and physical abuse.

The respondents took the view, that, there was nothing unconstitutional about legislation which authorised child marriage.

They suggested that the applicants were the cause of the problem.

The argument was that they should have taken responsibility for getting pregnant. The contention is that instead of seeking to have legislation on child marriage declared unconstitutional, the applicants should have taken advantage of their painful experiences to embark on advocacy and educational programmes to share their experiences with girl children. In that way, the argument went, they would give the girl children the skills and knowledge necessary to enable them to make the right choices on matters of sexual and reproductive health.

Four questions arise for determination from the positions taken by the applicants and the respondents. They are:

(1) Whether or not the applicants have, on the facts, locus standi, under section 85(1)(a) or section 85(1)(d) of the Constitution, to institute the proceedings claiming the relief they seek.

(2) If they are found to have standing before the Court, does section 78(1) of the Constitution set the age of eighteen years as the minimum age for marriage in Zimbabwe?

(3) If the answer to issue No.2 is in the affirmative, did the coming into force of sections 78(1) and 81(1) of the Constitution, on 22 May 2013, render invalid section 22(1) of the Marriage Act [Chapter 5:05] and any other law authorizing a girl who has attained the age of sixteen to marry?

(4) If the answer to issue No.3 is in the affirmative, what is the appropriate relief to be granted by the Court in the exercise of the wide discretion conferred on it under section 85(1) of the Constitution....,.

CC12-15 : LOVENESS MUDZURU and RUVIMBO TSOPODZI vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS N.O. and MINISTER OF WOMEN'S AFFAIRS, GENDER & COMMUNITY DEVELOPMENT and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

MERITSThe respondents case on the merits is that section 78(1) of the Constitution does not set the age of eighteen years as the minimum legal age of marriage.They argued that section 78(1) of the Constitution gives a person who has attained the age of eighteen the “right to found a ...

MERITS

The respondents case on the merits is that section 78(1) of the Constitution does not set the age of eighteen years as the minimum legal age of marriage.

They argued that section 78(1) of the Constitution gives a person who has attained the age of eighteen the “right to found a family.” The subsection does not, in express terms, give the person concerned the 'right to marry'.

According to the respondents, section 22(1) of the Marriage Act, or any law which authorizes a girl child who has attained the age of sixteen to marry, is not inconsistent with section 78(1) of the Constitution.

The applicants took issue with the literal interpretation of section 78(1) of the Constitution by the respondents. They contend, that, the meaning of section 78(1) of the Constitution can only be determined on the basis of a broad, generous, and purposive interpretation of its provisions.

INTERNATIONAL CONVENTIONS AND TREATIES

Context of Section 78(1) of the Constitution and Section 22(1) of the Marriage Act

The court is faced with the question of interpretation of section 78(1) as read with section 81(1) of the Constitution. It is also faced with the question of interpretation of section 22(1) of the Marriage Act and the effect of the application of section 78(1) of the Constitution on its meaning.

Section 46(1)(c) of the Constitution imposes an obligation on a court, when interpreting any provision of the Constitution contained in Chapter 4, to take into account international law and all treaties and conventions to which Zimbabwe is a party.

Both section 22(1) of the Marriage Act and section 78(1) of the Constitution were born out of provisions of international human rights law prevailing at the time of their respective enactment.

The meaning of section 78(1) of the Constitution is not ascertainable without regard being had to the context of the obligations undertaken by Zimbabwe under the international treaties and conventions on matters of marriage and family relations at the time it was enacted on 22 May 2013.

In deciding whether section 22(1) of the Marriage Act, or any other law which authorises child marriage, infringes the fundamental rights of girl children enshrined, guaranteed, and protected under section 81(1) as read with section 78(1) of the Constitution, regard must be had to the contemporary norms and aspirations of the people of Zimbabwe as expressed in the Constitution.

Regard must also be had to the emerging consensus of values in the international community, of which Zimbabwe is a party, on how children should be treated and their well-being protected so that they can play productive roles in society upon attaining adulthood.

The object of the interpretation of section 78(1) as read with section 81(1) of the Constitution, and of section 22(1) of the Marriage Act, should be to ensure that the interpretation resonates with the founding values and principles of a democratic society based on openness, justice, human dignity, equality and freedom set out in section 3 of the Constitution, and regional and international human rights law.

In considering the meaning of section 22(1) of the Marriage Act as a norm of behaviour towards children, the court has to take into consideration the current attitude of the international community, of which Zimbabwe is a party, on the position of the child in society and his or her rights.

Section 78(1) as read with section 81(1) of the Constitution, testifies to the fact that Zimbabwe is a signatory to the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC).

By signing these documents, Zimbabwe expressed its commitment to take all appropriate measures, including legislative, to protect and enforce the rights of the child as enshrined in the relevant conventions to ensure that they are enjoyed in practice.

Section 78(1) as read with section 81(1) of the Constitution must be interpreted progressively.

Child marriage is defined by the United Nations Children's Fund (UNICEF) (2011) Child Protection from Violence, Exploitation and Abuse Report as “a formal marriage or informal union before age 18.”

The term “child marriage” covers marriages of persons under the age of 18 years.

The minimum age of marriage was prescribed by the Committee on the Convention on the Elimination of All Forms of Discrimination against Women (1979) (CEDAW Committee) to be 18 years.

This was a result of the definition of “child” by Article 1 of the Convention on the Rights of the Child (CRC) which came into force on 2 September 1990.

Article 1 of the Convention on the Rights of the Child (CRC) defines 'a child' to mean “every human being below the age of eighteen years, unless, under the law applicable to the child, majority is attained earlier.”

Section 22(1) of the Marriage Act was enacted in 1965 as a response to omissions and exceptions that existed in the international human rights provisions on the protection of children that existed at the time.

The provisions that existed at the time were found in Article 16 of the Universal Declaration of Human Rights (UDHR) and the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriage Convention).

The common feature of the many conventions was the failure to specify for States Parties the minimum age of marriage as a means of protecting children. They left the matter exclusively to domestic law.

It is striking how poorly international human rights conventions addressed the practice of child marriage.

Apart from their general lack of vision, the conventions, not being self executing, constituted promises by the adopting parties to enact domestic legislation and adopt other measures to achieve the desired objectives.

Until 1990, almost all the conventions which contained provisions on marriage avoided specifying a mandatory minimum age of marriage for the States Parties.

While many conventions provided that marriage must be freely consented to by the bride and groom, there was no recognition of the special vulnerabilities of children where “consent” could be easily coerced or unduly influenced by adults: see Elizabeth Warner “Behind the Wedding Veil: Child Marriage as a Form of Trafficking in Girls” Journal of Gender, Social Policy & the Law: Vol. 12 Issue 2 (2004) Article 1…,.

Under Article 16(1) of the Universal Declaration of Human Rights (UDHR), the United Nations General Assembly proclaimed that only men and women of full age, without any limitation due to race, nationality, or religion, have a right to marry and to found a family.

The United Nations General Assembly, by necessary implication, declared that a person who had not attained the age of majority could not exercise the right to marry and to found a family.

Article 16(2) of the of the Universal Declaration of Human Rights (UDHR) proclaimed that marriage shall be entered into only with free and full consent of the intending spouses. By necessary implication, a person below the age of majority was not capable of giving free and full consent to marriage.

Marriage was to be for adult persons only, and, consent to marriage given on behalf of the intending spouses, was prohibited.

The problem with Article 16(1) and (2) of the Universal Declaration of Human Rights (UDHR) was not only that it was a declaration with no binding force on Member States, it also did not specify what the age of majority should be.

In 1962, the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriage Convention) was expected to resolve the issue of the standard age of majority for purposes of marriage.

The Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriage Convention) required States Parties to take legislative action to specify a minimum age for marriage. It stipulated, that, no marriage shall be legally entered into by a person under the minimum age, except where a competent authority granted a dispensation as to the age, for serious reasons, in the interest of the intending spouses.

According to a non-binding recommendation accompanying the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriage Convention), States Parties were directed not to specify a minimum age for marriage less than 15 years. States Parties were permitted to specify a minimum age for marriage by reference to what they considered to be the age of puberty.

The problem with the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriage Convention) is that it did not specify for States Parties a minimum age of marriage. It left States Parties free to set their own minimum ages for marriage.

As a result, States Parties set minimum ages of marriage as low as sixteen years for girls whilst setting different and usually higher ages for boys.

The other problem was that the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriage Convention) created exceptions permitting marriages of girls below the minimum age where Government officials approved of the marriages.

The effect of these provisions was that once a girl was married, however young she was, she was treated, under domestic law, as an adult.

Laws for the protection of children no longer reached her.

It was in the context of the omissions and exceptions in the provisions of international human rights law that the Marriage Act was enacted.

Section 22(1) of the Marriage Act prohibited marriage of a boy under the age of eighteen and of a girl under the age of sixteen except with the written permission of the Minister when he or she considered such marriage desirable.

The written permission, which was intended to be granted prior to solemnization of the marriage, could be granted after the solemnization where the Minister considered the marriage desirable and in the interests of the parties concerned.

Section 22(1) of the Marriage Act clearly permitted marriage of a girl who had attained the age of sixteen years.

Section 20(1) of the Marriage Act required that consent, in writing, be given to the solemnization of the marriage by the legal guardians of the girl.

Legal guardian was defined to include the mother of the girl where she and the father of the minor were living together lawfully as husband and wife or were divorced or were living apart and the sole guardianship of the minor had not been granted to either of them by order of the High Court or judge thereof.

Consent to marriage could be granted by a judge of the High Court where the consent of the legal guardian could not be obtained by reason of absence, or inaccessibility, or by reason of his or her being under any disability.

Section 21(1) of the Marriage Act provided that where a marriage which required the consent of a legal guardian, or legal guardians, had been solemnized without such consent, it became a valid marriage, if, within a period of six weeks, calculated from the date on which a legal guardian or legal guardians first had notice of such marriage, he or she or they did not make an application to the High Court for an order setting aside the marriage and declaring it void.

What is clear from the interpretation of the relevant provisions of the Marriage Act is that once a child got married, with the written permission of the Minister, and a girl who had attained the age of sixteen got married, they were treated as persons of full age to whom protection of the rights of the child was lost.

On 3 September 1981, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) came into force.

On the principle of equality of men and women, Article 16(1) provided that States Parties shall take all appropriate measures to ensure that men and women have the same right to enter into marriage and that each spouse has a right to enter into marriage only with his or her free and full consent.

By necessary implication, Article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) reserved the right to marry and to found a family to men and women of full age.

Article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) provides:

“2. The betrothal and the marriage of a child shall have no legal effect and all necessary action, including legislation, shall be taken to specify a minimum age of marriage and to make the registration of marriages in an official registry compulsory.”

Although Article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) prohibited child marriage, section 22(1) of the Marriage Act could not, at the time, be condemned for permitting child marriage in the absence of a specific provision in the international human rights law setting a minimum legal age for marriage.

Article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) did not even define “child”.

The problem of lack of definition of “child” in Article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was solved by the coming into force, on 2 September 1990, of the Convention on the Rights of the Child (CRC).

In Article 1, the Convention on the Rights of the Child (CRC) provided that:

“For the purposes of the present convention, a child means every human being below the age of eighteen years, unless, under the law applicable to the child, majority is attained earlier.”

The Convention on the Rights of the Child (CRC) makes provision for the protection of the rights of the child.

Article 2 of the Convention on the Rights of the Child (CRC) prohibits “discrimination” of any form against children, including on the basis of sex.

Article 3 of the Convention on the Rights of the Child (CRC) provides that “in all actions concerning children, the best interests of the child shall be a primary consideration” and that States Parties must “undertake to ensure the child such protection and care as is necessary for his or her well-being.”

The Convention on the Rights of the Child (CRC) also provides, that, all children shall have the right to protection from all forms of physical or mental violence, injury, abuse, maltreatment or exploitation; the right to health; the right to education; the right to protection from abduction, sale, or trafficking; the right to rest and leisure; the right to protection from economic exploitation; and the right to protection from all forms of exploitation prejudicial to the child's welfare.

In Article 24.3 the Convention on the Rights of the Child (CRC) provides that States Parties shall take measures to abolish “traditional practices prejudicial to the health of children.”

Although the Convention on the Rights of the Child (CRC) did not specify the age of eighteen as the minimum age for marriage, in defining “a child” it provided the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee and the CRC Committee with the basis for declaring the minimum age of marriage to be eighteen years.

This is because Article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) provides, in express terms, that the “marriage of a child shall have no legal effect.”

ELIZABETH WARNER, in the article “Behind the Wedding Veil: Child Marriage as a Form of Trafficking in Girls” Journal of Gender, Social Policy & the Law: Vol. 12 Issue 2 (2004)…, highlights the shortcomings of the Convention on the Rights of the Child (CRC) in these terms:

“The Convention on the Rights of the Child, intended as a comprehensive treaty on the rights of children, contains no explicit provision on marriage, which is odd, if not downright baffling (perhaps the drafters thought the subject was already covered by the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriages Convention)).

Article 1 of the Convention on the Rights of the Child provides that 'a child means every human being below the age of eighteen years, unless, under the law applicable to the child, majority is attained earlier'.

The word 'majority' is deliberately not defined in the Convention on the Rights of the Child and is left to local law to determine.

Consider how problematic this provision is in the case of a married female child.

In a society where a woman's value is defined entirely by reference to her marital status and her ability to bear children, a married female is likely to be viewed as having attained adult or 'majority' status regardless of her age, all the moreso once she has borne a child of her own.

One could therefore argue, that, the entire Convention on the Rights of the Child becomes irrelevant to her at that point.

And, indeed, many domestic laws explicitly provide that a person attains majority upon marriage, regardless of her age, thus creating an exception to the general 'rule of 18' that eviscerates the Convention on the Rights of the Child mandate where it is most needed.”

The Convention on the Rights of the Child (CRC) has also been criticised for not applying to girls and boys equally, in that, it does not give due consideration to particularly harmful situations that may be specific to either girls or boys.

ASKARI LADAN, in an article titled “The Convention on the Rights of the Child; The Necessity of Adding a Provision to Ban Child Marriages” (1998) 5 ILSA Journal of International and Comparative Law 123, explains that although the Convention on the Rights of the Child (CRC) was “designed to be gender blind” violations that primarily affect boys (i.e. child soldiers) are covered under CRC Article 38.

The same consideration is not given to violations predominantly affecting girls in child marriage.

Askari Ladan points out, that, although the issue of child soldiers may at times impact upon the girl-child, the primary target of concern is the boy–child.

Similarly, even though the issue of child marriage is of greater concern for girls, it could also apply to boys.

But, the failure of the Convention on the Rights of the Child (CRC) to protect the girl child against a particular practice that is primarily of concern to her is unfair in light of the fact that special consideration is given to an issue where boys are particularly vulnerable.

Such a gap reveals discrimination against the girl-child in the sense, that, the reality of her situation is not taken into account or specifically addressed.

There is need to fully acknowledge that a child's gender can detrimentally affect the realisation of his or her right.

The use of gender–neutral language throughout the Convention on the Rights of the Child (CRC) may have been intended to promote equality and the inclusiveness that was lacking when the language of human rights was written solely from a male perspective.

JEWEL AMOAH, in an article titled “The World on Her Shoulders: The Rights of the Girl–Child in the Context of Culture & Identity” Essex Human Rights Review Vol.4 No.2, September 2007 argues further, that, the inclusion of gender neutral language, on its own, is also not an ideal final solution. She concludes at p15 that:

“The failure to make specific reference to the girl–child and conditions that exacerbate her vulnerability is itself a form of discrimination against her…,. It is not enough that the language simply be gender–neutral; but, where there are specific gendered human rights abuses, then these must be directly addressed.”

Askari Ladan's solution to the Convention on the Rights of the Child's failure to thoroughly consider gender specific rights violations is to have the concept of gender equality established as a peremptory norm. She states:

“The problem of placing girls under the general category of 'child' is alleviated if gender equality is recognised as a peremptory and therefore non-derogable norm. Because it is gender–neutral, the term 'child' as used in the Convention on the Rights of the Child, avoids certain additional violations that are specific to girls only.

Thus, girls sometimes fail to be completely protected under the provisions of the Convention on the Rights of the Child.

By identifying gender equality as a jus cogens norm, the gender neutral language of the Convention on the Rights of the Child will no longer detrimentally affect girls human rights. Instead, girls rights will be protected irrespective of whether the treaty provisions are specific or general since gender equality will be the standard against which violations will be measured.”

It is, however, accepted by the critics, that, notwithstanding its shortcomings, the Convention on the Rights of the Child (CRC), as it stands, is, in many ways, a milestone in child and human rights.

It was after the Convention on the Rights of the Child (CRC) guaranteed specific “Rights of the Child” that child marriage could be viewed as a social evil in terms of its consequences on the girl child.

Study after study began to define child marriage as marriage of “a child” as defined under Article 1 of the Convention on the Rights of the Child (CRC).

The studies showed how child marriage infringed the fundamental rights of the girl–child guaranteed by the Convention on the Rights of the Child (CRC), particularly; the right to education; the right to be protected from all forms of physical or mental violence, injury, or abuse, including sexual abuse; the right to be protected from all forms of sexual exploitation; the right to the enjoyment of the highest attainable standard of health; the right to educational and vocational information and guidance; the right to seek, receive, and impart information and ideas; the right to rest and leisure and to participate freely in cultural life; the right not to be separated from parents against their will; and the right to protection against all forms of exploitation affecting any aspect of the child's welfare.

In 1990, the African Charter on the Rights and the Welfare of the Child (1990) came into force.

Article 21 of the African Charter on the Rights and the Welfare of the Child (1990) is significant enough to repeat here:

“Article 21 Protection against Harmful Social and Cultural Practices

1. States Parties to the present Charter shall take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth, and development of the child, and, in particular:

(a) Those customs and practices prejudicial to the health or life of the child; and

(b) Those customs and practices discriminatory to the child on the grounds of sex or other status.

2. Child marriage and the betrothal of girls and boys shall be prohibited, and, effective action, including legislation, shall be taken to specify the minimum age of marriage to be 18 years and make registration of all marriages in an official registry compulsory.”

In clear and un-ambiguous language, Article 21 of the African Charter on the Rights and the Welfare of the Child (1990) (ACRWC) imposed on States Parties, including Zimbabwe, an obligation which they voluntarily undertook, to take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth, and development of the child.

The African Charter on the Rights and the Welfare of the Child (1990) (ACRWC) goes on to specifically target child marriage as such a harmful social and cultural practice affecting the welfare, dignity, normal growth, and development of the child - particularly the girl child.

The States Parties are placed under a positive obligation to take effective measures, including legislation, to specify the age of eighteen years as the minimum age for marriage.

They are obliged to abolish child marriage.

Article 21(2) of the African Charter on the Rights and the Welfare of the Child (1990) (ACRWC) avoided the omissions and exceptions that the other conventions on human rights, relating to marriage, had permitted States Parties to exploit through local laws that authorized child marriage.

Commenting on the provisions of Article 21(2) of the African Charter on the Rights and the Welfare of the Child (1990) (ACRWC), ELIZABETH WARNER, in the article “Behind the Wedding Veil: Child Marriage as a Form of Trafficking in Girls” Journal of Gender, Social Policy & the Law: Vol. 12 Issue 2 (2004)…, had this to say…,:

“This is the most explicit provision of any of the international treaties discussed herein. It unequivocally sets the minimum age of marriage at eighteen and brooks no exception for local, religious, or other cultural practices, nor does it allow for exceptions based upon the consent of a local authority or the parents or guardians of the children concerned.

An Oxfam report optimistically states, that, this law is a reflection of changes in attitudes toward child marriages in recent years. The only drawback to this convention is that there are not more States that are parties to it. Again, one longs for the ability to insert this provision into the Convention on the Rights of the Child (CRC) and the Convention on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the Marriages Convention) where it so clearly belongs.”

The provisions of Article 21(2) of the African Charter on the Rights and the Welfare of the Child (1990) (ACRWC) had a direct effect on the views on the validity of sections 20 and 22 of the Marriage Act.

A review of States reports presented to the Convention on the Rights of the Child (CRC) Committee from 1997 to 2004 reveals, that, forty-four States specified a lower age for girls to marry than boys.

In its concluding comments, E/1996/22 (1995)…, the Committee on the International Convention on Economic Social and Cultural Rights (ICESCR Committee) indicated that differences in marriageable age between girls and boys violated provisions of international human rights instruments guaranteeing to girls and boys equal treatment before the law.

In its concluding comment on Zimbabwe, A/53/40 (1998)…, the Committee on the Convention on Civil and Political Rights (ICCPR Committee) expressed the view, based on the interpretation of section 22(1) of the Marriage Act, that, early marriage, and the statutory difference in the minimum age of girls and boys for marriage, should be prohibited by law.

The Government of Zimbabwe was asked to adopt measures to prevent and eliminate prevailing social and cultural practices harmful to the welfare of children.

The comment by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee in General Recommendation 21…, was to the effect, that, provisions such as those of section 22(1) of the Marriage Act, which provided for different ages for marriage for girls and boys, assumed, incorrectly, that girls have a different rate of intellectual development from boys or that their stage of physical and intellectual development at marriage was immaterial.

The Committee recommended that these provisions be abolished.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee, in making the comment in General Recommendation 21…, proceeded on the basis, that, it was common cause that the coming into effect of Article 1 of the Convention on the Rights of the Child (CRC) and Article 21(2) of the African Charter on the Rights and the Welfare of the Child (1990) (ACRWC) rendered provisions such as those contained in section 22(1) of the Marriage Act, and any other law authorizing marriage of a person aged below eighteen years, inconsistent with the obligations of Zimbabwe under international human rights law to protect children against early marriage.

The view held was that the abolition of the impugned statutory provisions would be consistent with the fulfilment by Zimbabwe of the obligations it undertook in terms of the relevant conventions and the Charter.

The question was when the abolition would take place.

The adoption of legislative measures for the abolition of the offending statutory provisions, such as section 22(1) of the Marriage Act, became a compelling social need.

There was overwhelming empirical evidence of the horrific consequences of child marriage.

Study after study exposed child marriage as an embodiment of all the evils against which the fundamental rights are intended to protect the child.

The studies showed, that, where child marriage was practised, it was evidence of failure by the State to discharge its obligations under international human rights law to protect the girl child from the social evils of sexual exploitation, physical abuse, and deprivation of education, all of which infringed her dignity as a human being.

The facts set out here, on the horrific consequences of child marriage, as part of the context for the determination of the question of the constitutional validity of section 22(1) of the Marriage Act, could not fail to have an impact on the conscience of any society that cares about the fundamental values of human dignity, freedom, and equality.

Elizabeth Warner found, that, while the prevalence of child marriage cuts across many different countries with different cultural and religious traditions, certain factors pertaining to the practice were nearly universal.

She found that the marriage of a girl child is almost always arranged by her parents, or guardian, whose desires take precedence over the wishes of the child. The marriage is a bartered transaction, accompanied by payment of a negotiated bride price from the groom's family to the bride's family. In general, the younger the bride the higher the price she will fetch. Girls are usually married to much older men who can afford to pay the bride price. The marriage is immediately consummated and the girl made to start bearing children immediately.

A study by the Division of Policy and Practice of UNICEF titled “Child Marriage and the Law” (April 2007)…, looked at the causes of child marriage. It states:

“Poverty is one of the main determinants of early marriage. In many countries in the Middle East, South Asia, and Sub-Saharan Africa poverty drives families to give their daughters in marriage in the hope that this will alleviate the family's poverty and secure the family's honour when it is at stake.

Although child marriage is seen as a way to escape the cycle of poverty, child marriage in fact worsens the cycle of inter-generational poverty.

Although poverty is one of the underlying causes of child marriage, as parents see this as an opportunity to receive money or save money, child marriage is not restricted to poor families. Child marriage is also one way of preserving wealth in families of a higher socio–economic class.”

The horrific consequences of child marriage were set out in the UNICEF report titled “Child Marriage and the Law” (April 2007)…, with such admirable clarity that it would be an injustice to the study to paraphrase the findings. They are set out as follows:

“4.5 Consequences of Child Marriage

Although child marriage most often stems from poverty and powerlessness, it only further reinforces the gendered notions of poverty and powerlessness stultifying the physical, mental, intellectual, and social development of the girl child and heightening the social isolation of the girl child.

Evidence shows, that, child marriage is a tool of oppression which subordinates not just the woman but her family. Not only does child marriage perpetuate an inter-generational cycle of poverty and lack of opportunity, it reinforces the subordinated nature of communities that traditionally serve the powerful classes by giving a girl child in marriage to an older male.

4.6 Domestic Violence

Child marriage often partners young girls with men who are much older. Girls find themselves in new homes with greater responsibilities, without much autonomy or decision–making power and unable to negotiate sexual experiences within the marriage. Economic dependency and the lack of social support also expose young married girls to other kinds of violent trauma during marriage. A child bride is often regarded as a wife-in-training and is considered to be docile and malleable. This assumption exposes child brides to the greater risk of domestic violence and sexual abuse by her in-law's family. Child brides are also forced into household labour in their husband's families which result in the exploitation of the girl child.

4.7 Trafficking in Women and Children

Since child marriages are contingent upon large amounts of money exchanging hands, child marriage amounts to trafficking in girls. Child marriage often facilitates the trade in women as cheap labour and has led to a rise in trafficking in women and children. Child marriage is also used as a means to conduct prostitution and bonded labour.

4.8 Health Costs

Child marriage reinforces the incidence of infectious diseases, malnutrition, high child mortality rates, low life expectancy for women, and an inter-generational cycle of girl child abuse. Pregnancy-related death is a leading cause of death for girls between 15 and 19 years of age. The dangers of early marriage affect not only the girl child, but the child born to her as well. Premature birth, low growth rate, and poor mental and physical growth are some characteristics of babies born to young mothers.

The real costs associated with women's health and infant mortality are enormous.

Child marriage can have devastating consequences on the sexual and reproductive health of girls: specifically increasing the risk of maternal mortality and morbidity and contracting sexually transmitted diseases - particularly HIV/AIDS. The risk of contracting STI's and HIV rises and married girls are unable to negotiate safe sex, and, are more likely to be married to older men with more sexual experience who are more likely than single men to be HIV positive.

Young girls, particularly those below 15 years of age, face serious reproductive health hazards; sometimes losing their lives as a result of early pregnancies. Those under the age of 15 are five times as likely to die as women in their twenties. The main causes are haemorrhaging, sepsis, pre-eclampsia/eclampsia, and obstructed labour. When a young mother's vagina, bladder, or rectum tears during child birth, it can cause urine or faeces leakage known as obstetric fistula. This can happen when a young woman with under-developed physiology gives birth.

In addition to their lack of power in relation to their husbands or in-laws, girls are further exposed to sexual and reproductive health problems because of their lack of knowledge, information, and access to sexual and reproductive health services, in particular family planning, ante-natal, obstetrics, and post-natal care.

4.9 Education

Countless studies have proven that early marriage is universally associated with low levels of schooling. After marriage, young married girls access to formal, and even non-formal education is severely limited because of restrictions placed on mobility by domestic burdens, child bearing, and social norms that view marriage and schooling as incompatible. Since in most cultures girls leave their parental home upon marriage, parents tend not to invest in the education of daughters because the benefits of their investment will be lost.

Child marriage and lack of access to continued educational opportunities also limit young women's access to employment opportunities. Child marriage is also associated with early widowhood, divorce, and abandonment which often results in “feminization of poverty”. Research has shown that girls with higher levels of schooling are less likely to marry as children.”

Elizabeth Warner observed, that, regardless of how it occurs, early marriage takes a terrible toll on a girl's physical and emotional health.

Because of her age, inexperience, and vulnerability, she is likely to be dominated and controlled by her husband, who has the power to keep her a virtual prisoner. Rape, beatings, and other forms of sexual and domestic violence are common and early and repeated pregnancies are life threatening. Young mothers also face far greater risks of complications in pregnancy because their bodies are not sufficiently developed and infant mortality is far greater among young mothers.

Enactment of Section 78(1) of the Constitution

Consideration of the changes in international human rights law on marriage and family relations over five decades, shows that section 22(1) of the Marriage Act was born out of lack of commitment to the protection of the fundamental rights of the girl child.

Section 78(1) as read with section 81(1) of the Constitution is born out of commitment by the international community, including Zimbabwe, to providing greater and effective protection of the fundamental rights of the child.

Section 78(1) of the Constitution was enacted for the purpose of complying with the obligations Zimbabwe had undertaken under Article 21(2) of the African Charter on the Rights and the Welfare of the Child (1990) (ACRWC) to specify, by legislation, eighteen years as the minimum age for marriage and abolish child marriage.

Under Article 18 of the Vienna Convention on the Law of Treaties, which came into force on 2 January 1980, a State Party is enjoined to hold in good faith and observe the rights and obligations in a treaty to which it is a party.

Zimbabwe had to see through its obligations under the conventions to which it is a party, requiring it to specify eighteen years to be the minimum age of marriage and to abolish child marriage. As the obligations were specific in terms of what the States Parties had to do, the compliance by Zimbabwe was also specific.

Although the respondents contend, that, the nature and scope of the content of section 78(1) of the Constitution is ascertainable from the literal meaning of the language used, all they did was to restate the terms of the provision.

Mere restatement of terms of a provision is not an application of the Golden Rule of construction.

The respondents did not interpret the provisions of section 78(1) of the Constitution to determine its meaning, because, had they done so, they would have realized the absurdity of concluding that a family is not founded on marriage.

They would also have realised the absurdity of concluding, that, persons who have attained eighteen years have a right to found a family but no right to marry.

The absurdity would manifest itself in that their contention would mean, that, whilst persons under eighteen years would, according to them, have the right to marry, they would not have the right to found a family.

The respondents overlooked the fact, that, even the literal rule of interpretation is based on the acceptance of the principle, that, words are symbols by which ideas or thoughts are conveyed. Meaning is the totality of what the words signify.

As JUSTICE HOLMES of the Supreme Court of the United States of America said in Towne & Eisner 245 US 418 (1918)…, “a word is…, the skin of the living thought.”

The respondents did not interpret the provisions of section 78(1) of the Constitution to determine its meaning, because, had they done so, they would have realized the absurdity of concluding that a family is not founded on marriage.

They would also have realised the absurdity of concluding, that, persons who have attained eighteen years have a right to found a family but no right to marry.

The absurdity would manifest itself in that their contention would mean, that, whilst persons under eighteen years would, according to them, have the right to marry, they would not have the right to found a family.

Section 46(1)(a) of the Constitution obliges a court, when interpreting a provision contained in Chapter 4, to give full effect to the rights and freedoms enshrined in the Chapter.

The court is required, by section 46(1)(d) of the Constitution, to pay due regard to all the provisions of the Constitution, in particular, the principles and objectives set out in Chapter 2.

The purpose of interpreting a provision contained in Chapter 4 must be to 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 3 of the Constitution.

If the literal interpretation were applicable to the determination of the meaning of section 78(1) of the Constitution, its application would not give the fundamental right guaranteed and protected under section 78(1) the full measure of protection it deserves.

The interpretation would fail to take into account the fact, that, the nature and scope of the content of the right to found a family require, in many instances, that the persons who have attained the age of eighteen, who are desirous to found a family, enter into an agreement to live together as husband and wife which union forms the foundation and nucleus of the family.

Entering into marriage is, by definition, one of the methods by which a family is founded.

The court agrees with counsel for the applicants, that, only a broad, generous, and purposive interpretation would give full effect to the right to found a family enshrined in section 78(1) of the Constitution.

In Rattigan and Others v The Chief Immigration Officer and Others 1994 (2) ZLR 54 the Court held, that, the preferred constitutional construction “is one which serves the interest of the Constitution and best carries its objects and promotes its purpose.”

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

The interpretation of section 78(1) of the Constitution must take into account the provisions of subsections (2) and (3).

Sub-section (2) guarantees, to the persons who have attained the age of eighteen years, freedom to enter into marriage without compulsion and with free will.

Section 26(a), which falls under Chapter 2, imposes an obligation on the State to take appropriate measures to ensure that no marriage is entered into without the free and full consent of the intending spouses.

For the persons who have attained the age of eighteen to enjoy the right to enter into marriage freely and with full consent as intending spouses, they must first have the right to enter into marriage.

Similarly, subsection (3) which prohibits same sex persons from entering into marriage, means that those with the right to enter into marriage are the persons mentioned in section 78(1) of the Constitution.

It is the person mentioned in section 78(1) of the Constitution who is given the right to exercise the right to enter into marriage with a person of the opposite sex who also has attained the age of eighteen years.

Both sub sections (2) and (3) of section 78 of the Constitution do not guarantee the right to enter into marriage.

The necessary implication leads to the conclusion, that, the right to enter into marriage is guaranteed to a man and woman who have attained the age of eighteen by section 78(1) of the Constitution.

As the headnote states, section 78 of the Constitution is about “marriage rights.”

The Constitution does not specify the type or nature of marriage. A person can choose to enter into any kind of a marriage and found a family.

The wide definition of marriage is that it is a union between a man and woman of full age who have freely, and with full consent, entered into an agreement to live together, permanently, as husband and wife, to have children and bring them up in a family.

A family is a natural and fundamental group unit of society founded upon the union between a man and woman who have attained the age of eighteen years as provided for under section 78(1) of the Constitution.

Marriage is, in fact, the traditionally accepted way of founding a family.

It is an important social relationship forming the foundation of a family entered into by free men and women in pursuit of happiness in family life. Entering into marriage is an exercise of the right to found a family. The right to found a family can, of course, be exercised by a single parent who lives with and brings up his or her children. A person can found a family in that respect, without necessarily getting married to the father or mother of the child with whom he or she lives as one household.

Section 25(a) of the Constitution recognises a household in which a father or a mother has charge of his or her children as a family deserving of protection by the State.

Section 78(1) of the Constitution means, that, everyone who has attained the age of 18 years has the right to enter into a marriage with a person of the opposite sex and found a family: see MAVEDZENGE and COLTART “A Constitutional Law Guide Towards Understanding Zimbabwe's Fundamental Socio-Economic and Cultural Human Rights” 2014…,.

Section 78(1) of the Constitution sets eighteen years as the minimum age of marriage in Zimbabwe.

Its effect is that a person who has not attained the age of eighteen has no legal capacity to marry. He or she has a fundamental right not to be subjected to any form of marriage regardless of its source. The corollary position is that a person who has attained the age of eighteen years has no right to marry a person aged below 18 years.

Section 81(1) of the Constitution puts the matter of the legal effect of section 78(1) of the Constitution beyond any doubt.

It provides, that, a person aged below 18 years is “a child” entitled to the list of fundamental rights guaranteed and protected thereunder.

That means, that, the enjoyment of the right to enter into marriage and found a family, guaranteed to a person who has attained the age of 18 years, is legally delayed in respect of a person who has not attained the age of eighteen years.

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 African Charter on the Rights and the Welfare of the Child (1990) (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.

CC12-15 : LOVENESS MUDZURU and RUVIMBO TSOPODZI vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS N.O. and MINISTER OF WOMEN'S AFFAIRS, GENDER & COMMUNITY DEVELOPMENT and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

Effect of Section 78(1) of the Constitution on Section 22(1) of the Marriage Act and Child MarriageThe applicants contend, that, section 78(1) as read with section 81(1) of the Constitution had the effect of rendering section 22(1) of the Marriage Act invalid when it came into force on 22 May ...

Effect of Section 78(1) of the Constitution on Section 22(1) of the Marriage Act and Child Marriage

The applicants contend, that, section 78(1) as read with section 81(1) of the Constitution had the effect of rendering section 22(1) of the Marriage Act invalid when it came into force on 22 May 2013.

Counsel for the applicants argued…, that, as section 78(1) of the Constitution contains an absolute prohibition of child marriage, section 22(1) of the Marriage Act cannot be construed to be in conformity with the Constitution.

The applicants contend further, that, as a result of the coming into force of section 78(1) as read with section 81(1) of the Constitution, child marriage has been abolished in Zimbabwe.

The argument advanced on behalf of the applicants is that because the executive and legislative branches of Government failed to take legislative measures to repeal section 22(1) of the Marriage Act, it has continued to provide the ghost of legitimacy to child marriages entered into after 22 May 2013.

The factual basis of the applicants contention is supplied by the findings of the Multiple Indicator Cluster Survey 2014.

The findings of the survey were that 26.2 percent of young people aged 15-19 years were in marriage, of which 24.5 per cent were females and only 1.7 per cent males.

The invalidity of existing legislation inconsistent with a constitutional provision occurs at the time the constitutional provision comes into force and not at the time a fundamental right is said to be infringed or when an order of invalidity is pronounced by a court. A statute which is enacted when the Constitution is in existence becomes invalid the moment it is enacted, if it is inconsistent with a constitutional provision.

The rule of invalidity of a law or conduct is derived from the fundamental principle of the supremacy of the Constitution.

Section 2(1) of the Constitution provides, that, the Constitution is the supreme law of Zimbabwe, and, any law, practice, custom or conduct inconsistent with its provisions is invalid to the extent of the inconsistency.

A court does not create constitutional invalidity. It merely declares the position in law at the time the constitutional provision came into force or at the time the impugned statute was enacted.

The principle of constitutionalism requires that all laws be consistent with the fundamental law to enjoy the legitimacy necessary for force and effect.

It is for this Court to give a final and binding decision on the validity of legislation.

In Ferreira v Levin NO 1996 (1) SA 984 (CC) at para 1006I-J ACKERMAN J remarked:

“The court's order does not invalidate the law; it merely declares it invalid. It is very seldom patent, and in most cases is disputed, that pre-constitutional laws are inconsistent with the provisions of the Constitution. It is one of this Court's functions to determine and pronounce on the validity of laws, including Acts of Parliament. This does not detract from the reality that pre-existing laws either remained valid or became invalid upon the provisions of the Constitution coming into operation.”

At p1007C the learned Judge said:

“A pre-existing law which was inconsistent with the provisions of the Constitution became invalid the moment the relevant provisions of the Constitution came into effect.”

Section 78(1) as read with section 81(1) of the Constitution sets forth the principle of equality in dignity and rights for girls and boys, effectively prohibiting discriminatory and unequal treatment on the ground of sex or gender.

Consistent with Article 21(2) of the African Charter on the Rights and the Welfare of the Child (1990) (ACRWC), 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.

Section 78(1) of the Constitution permits of no exception for religious, customary, or cultural practices that permit child marriage, nor does it allow for exceptions based on the consent of a public official, or of the parents, or guardian of the child.

When read together with section 81(1) of the Constitution, section 78(1) has effectively reviewed local traditions and customs on marriage.

The legal change is consistent with the goals of social justice at the centre of international human rights standards requiring Zimbabwe to take appropriate legislative measures, including constitutional provisions, to modify or abolish existing laws, regulations, customs and practices inconsistent with the fundamental rights of the child.

There was obvious social need to break with the past where a child, aged sixteen, could be turned into a wife.

Section 78(1) of the Constitution is based on the principle, that, only free men and women, of full age, should marry.

When men and women marry, they assume important responsibilities. They must have reached the legal age of maturity when they have the capacity to freely choose their partners and be able to give free and full consent to marriage.

Section 78(1) of the Constitution provides, in effect, that a person aged below 18 years has not attained full maturity and lacks capacity to understand the meaning and responsibilities of marriage.

The rights to marry and found a family are rights to be enjoyed by adults and not children.

The Inter-African Committee on Traditional Practices Affecting the Health of Children states, that, early marriage is “any marriage carried out below the age of 18 years, before the girl is physically, physiologically, and psychologically ready to shoulder the responsibilities of marriage and child bearing.”

No law can validly give a person in Zimbabwe, who is aged below eighteen years, the right to exercise the right to marry and found a family without contravening section 78(1) of the Constitution.

To the extent that it provides that a girl who has attained the age of sixteen can marry, section 22(1) of the Marriage Act is inconsistent with the provisions of section 78(1) of the Constitution, and, therefore, invalid.

In light of the overwhelming empirical evidence on the harmful effects of early marriage on girl children, no law which authorizes such marriage can be said to do so to protect “the best interests of the child.”

The best interests of the child would be served, in the circumstances, by legislation which repealed section 22(1) of the Marriage Act.

By exposing girl children to the horrific consequences of early marriage, in clear violation of their fundamental rights as children, section 22(1) of the Marriage Act is contrary to public interest in the welfare of children.

Failure by the State to take such legislative measures to protect the rights of the girl-child when it was under a duty to act, denied the girl children subjected to child marriages the right to equal protection of the law.

Surprisingly, counsel for the respondents sought to justify marriage under section 22(1) of the Marriage Act on the ground that a girl physiologically, psychologically, and emotionally matures earlier than a boy.

The contention is without scientific evidence to support it.

The Zimbabwe Human Rights Bulletin Number 98, August 2014 states that the reason why eighteen years is specified under international human rights law, and national constitutions, as the minimum age for marriage, is that a person of that age is considered to be psychologically and physiologically developed enough for the responsibilities and consequences of marriage and is capable of giving free and full consent to marriage.

As a matter of fact, the Inter-African Committee on Traditional Practices Affecting the Health of Children gives the rationale for international human rights law setting eighteen years as the minimum age for marriage, as being, that, a girl aged below eighteen (18) years is invariably, physically, physiologically, and psychologically immature to shoulder the responsibilities of marriage and child-bearing.

The horrific consequences of child marriage are clear testimony to the flaw in the respondents argument.

It is important to recall the comment by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee in General Recommendation 21…, to the effect that section 22(1) of the Marriage Act assumed, incorrectly, that girls have a different rate of intellectual development from boys or that their stage of physical and intellectual development at marriage is immaterial.

The respondents failed to appreciate, that, it is not the circumstance or condition of the child that is the determinant factor when the effect of section 78(1) of the Constitution on legislation is considered.

Section 78(1) of the Constitution has the effect of protecting every child, equally, regardless of his or her personal condition.

The factor of a girl maturing earlier than a boy, said to be the rationale for the differences in the treatment of girls and boys authorised by the impugned legislation, is of no consequence in the determination of the effect of section 78(1) of the Constitution on the validity of the legislation.

Section 78(1) of the Constitution entitles a girl and a boy to equal protection and treatment before the law.

It is regrettable, that, the respondents failed to appreciate that the rationale they advanced in support of the difference in the treatment of girls and boys, formalised by the impugned legislation, is the old stereotypical notion that females were destined solely for the home and the rearing of children of the family and that only the males were destined for the market place and the world of ideas: see Stanton v Stanton 421 US 7(1975).

The contention by the respondents is contrary to the fundamental values of human dignity, gender equality, social justice, and freedom which the people of Zimbabwe have committed themselves to uphold and promote through legislation governing the interests of children.

Fear was also expressed, that, if section 22(1) of the Marriage Act, and any other law or custom which authorizes child marriage, were declared unconstitutional and struck down, men would impregnate girls and not bear the responsibility of having to marry them.

The short answer to the concern is that once it is accepted, as it should be, that sections 78(1) and 81(1) of the Constitution guarantee and protect the right to equality of treatment before the law to a girl and a boy, without provision for exceptions, the circumstance of a girl getting pregnant does not dis-entitle her from the enjoyment of all the rights of a child enshrined in section 81(1) of the Constitution.

A girl does not become an adult, and, therefore, eligible for marriage, because she has become pregnant.

The effect of the protection under section 78(1) as read with section 81(1) of the Constitution, is that a girl remains a child regardless of her pregnancy status until she attains the age of eighteen (18) years.

Whilst she is a child, all the fundamental rights of a child protect her from being subjected to any form of marriage. The pregnant girl is entitled to parental care and schooling just as any other child is entitled. This means, that, the parental obligation to marriage and its horrific consequences based on conceptions of sex discrimination or care for and control the girl child does not cease because of her pregnancy.

Resistance to the liberation of the girl-child from the shackles of child is against the best interests of the girl child served by the enforcement of the fundamental rights enshrined in sections 78(1) and 81(1) of the Constitution.

Girl children are entitled to effective protection by the Court which is the upper guardian of the rights of children and whose duty it is to enforce the fundamental rights designed for their protection.

The history of the struggle against child marriage, sadly, shows that there has been, for a long time, lack of common social consciousness on the problems of girls who became victims of early marriages.

There is a difference between making a man take responsibility for the pregnancy of a girl and the maintenance of the baby, once it is born, and compelling a girl child to get married because she got pregnant.

The issue of early pregnancy is a social problem that needs co-operation amongst all stakeholders to solve. It would, in fact, be a form of abuse of a girl child to compel her to be married because she got pregnant. That, in any case, cannot happen without a contravention of section 78(1) as read with section 81(1) of the Constitution.

What is clear is that pregnancy can no longer be an excuse for child marriage.

There cannot be a family founded by a child.

Even under the provisions of section 22(1) of the Marriage Act, pregnancy was not regarded as a condition necessary for marriage.

Of urgency is the prevention of the ongoing violations of the girl child's fundamental rights.

Once the fact that child marriage has been abolished in Zimbabwe is known, the imperative character of the law shall be felt in the hearts and minds of many men and women so strongly that transformative obedience to it shall become a matter of habit.

APPROPRIATE RELIEF

The applicants have succeeded in showing that section 78(1) of the Constitution sets eighteen (18) years as the minimum age of marriage in Zimbabwe. They have also succeeded in showing, that, section 22(1) of the Marriage Act and any law, custom, and practice which authorizes child marriage is unconstitutional.

That would include the Customary Marriages Act [Chapter 5:07] to the extent that it authorises child marriage.

The duty of the Court is to declare legislation which is inconsistent with the Constitution to be invalid.

Section 175(6)(b) of the Constitution gives the Court a discretion to make an order that is just and equitable, including an order limiting the retrospective effect of the declaration of invalidity.

In the exercise of its discretion, the Court is cognisant 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.

The Court has found it in the public interest to make the order granted to have effect from the date of issue....,.

DISPOSITION

The court makes the following order:

1. The application succeeds.

2. It is declared, that, section 78(1) of the Constitution of the Republic of Zimbabwe, Amendment (No.20) 2013 sets eighteen (18) years as the minimum age of marriage in Zimbabwe.

3. It is further declared, that, section 22(1) of the Marriage Act [Chapter 5:11] or any law, practice, or custom authorising a person under eighteen years of age to marry or to be married is inconsistent with the provisions of section 78(1) of the Constitution and therefore invalid to the extent of the inconsistency.

The law is hereby struck down.

4. With effect from 20 January 2016, no person, male or female, may enter into any marriage, including an unregistered customary law union, or any other union, including one arising out of religion or religious rite, before attaining the age of eighteen (18) years.

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE
Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

On 25 January 2022, the applicant filed an application seeking direct access to this Court in terms of section 167(5)(a) of the Constitution of Zimbabwe 2013 (“the Constitution”) as read with Rule 21(2) of the Constitutional Court Rules 2016 (“the Rules).

If leave is granted, it is his intention to file an application in terms of section 85(1) of the Constitution for the vindication of two of the fundamental rights that he alleges were violated by a High Court decision.

The two fundamental rights in question are the right to access the courts and the right to equal protection and the benefit of the law, respectively.

The allegation made in the application is that the common law remedy that permits execution of a judgment pending appeal violates the Constitution.

FACTUAL BACKGROUND

The respondent is a common law universitas that is governed by its constitution. It is a church with various stations throughout the country. The applicant is a former member of the respondent's executive leadership structure.

The facts surrounding this dispute are mostly common cause.

Over an extended period of time, the respondent's executive, which included the applicant, wrangled over the control of the respondent and its assets. The dispute spilled into the courts, initially the High Court. The High Court found in favour of the other members of the executive and declared them as the duly authorised representatives of the respondent. It also gave them the right to possess and control the assets in dispute.

The applicant was aggrieved. He noted an appeal to the Supreme Court.

On 28 May 2021, the Supreme Court rendered its judgment in which it upheld the judgment of the High Court. The court determined, that, the other members of the executive were the duly authorised representatives of the respondent. The applicant was ordered to pay costs.

At the core of the dispute was the right to occupy Stand 696 New Ardlyn, Westgate, Harare. This property had previously been under the stewardship of the applicant.

Consequent to the Supreme Court's decision, the applicant and his acolytes voluntarily departed from Stand 696 New Ardlyn, Westgate, Harare. However, on 11 October 2021, the applicant returned and unlawfully appropriated the aforesaid premises from the respondent's elected officials.

An application for a mandament van spolie was filed by the respondent, under a certificate of urgency, for the ejection of the applicant from the premises. The application succeeded. The High Court ordered that the applicant be ejected and that the possession thereof be restored to the respondent's executives.

Aggrieved with the decision of the High Court, the applicant appealed to the Supreme Court. In response, the respondent, under HC6465/21, applied for leave to execute the judgment pending the determination of the appeal.

During the hearing of the application for leave to execute the judgment pending appeal, the applicant made an application for a referral to this Court of a constitutional question on the basis of certain constitutional issues that he alleged emanated from the matter.

The crux of his challenge was whether the common law remedy of execution pending appeal was consistent with the Constitution.

The application was opposed by the respondent. It argued that the request was frivolous and vexatious. It contended that there was no violation of any constitutional provisions in the intended application for relief before the High Court.

On 13 January 2022, the High Court rendered its judgment on the application for a referral of the matter to the Constitutional Court.

The court a quo refused the application. It ruled that it lacked merit.

The court a quo reasoned, further, that, there was nothing unconstitutional for a court to order the execution of its own judgment pending appeal as the law permitted this exercise of discretion on the part of the High Court. It thereafter proceeded to determine the merits of the respondent's application for execution pending appeal.

The court a quo noted, that, the applicant had previously vacated the premises in question in compliance with an order of court. However, he had reclaimed control through violent means, and, as a consequence, the noting of the appeal was meant to deny the respondent's representatives access to the property in question whilst he contested the right to control the assets of the respondent.

It is that determination which forms the basis of the present application that is before the Court.

In casu, the applicant seeks to challenge the determination by the High Court. He avers that its decision was wrongful because his request was neither frivolous nor vexatious. It is submitted, on his behalf, that, the prospective substantive application enjoys considerable prospects of success.

The application is opposed.

The respondent submits, that, the present application is frivolous and vexatious. It avers that its effect is meant to frustrate the effect of various judgments that have been granted against the applicant.

The major part of the reasons for opposing the application constitute legal argument, which I will advert to later in the judgment.

APPLICANT'S SUBMISSIONS BEFORE THIS COURT

The applicant advances the argument, that, once an appeal is before the Supreme Court, the court a quo ceases to have jurisdiction over the matter.

He contends, that, this is the essence of section 162 of the Constitution as read with sections 168 and 169 thereof.

It is contended on his behalf, that, the common law rule of execution pending appeal runs contrary to the principle of law that only the Supreme Court has power over its own rules and orders.

In addition, the applicant argues that the established hierarchy of the Courts is disrupted by the common law remedy, which enables the High Court to determine a matter pending before the Supreme Court.

He submits, that, the High Court would, on that premise, be taking sides in the appeal under the guise of determining the prospects of success.

The applicant posits, that, in that process, the right of access to the appellate court is impinged upon by the interference of the High Court.

Despite the right of appeal against any determination by the High Court, the applicant submits that there is no alternative remedy available to him.

Counsel for the applicant submitted, that, the applicant's constitutional rights were violated by the High Court's refusal to refer the constitutional question to the Constitutional Court.

Questioned by the Court as to whether the applicant was challenging the procedural or substantive propriety of the court a quo's decision, he submitted that there was no distinction between the two.

He asserted, that, the established jurisprudence of the Court merely highlighted that once a wrong decision has been made, it can be challenged both procedurally and substantively in a superior court. According to him, the only permissible exception is a Supreme Court decision due to its status as a final decision of the apex court in non-constitutional matters.

Counsel for the applicant submitted, further, that, the court a quo did not apply the established test under section 175(4) of the Constitution to determine whether the application for referral was frivolous or vexatious.

He made reference to the judge a quo's alleged failure to explicitly state whether the application was frivolous or vexatious as evidence of a wrong approach that ultimately led to a wrong decision.

It was contended, that, the constitutional issue of the High Court's jurisdiction to determine applications for leave to execute pending appeals was not addressed and that the matter was neither frivolous nor vexatious.

In response to the Court's question as to whether there was an adherence to the Rules in respect of the application filed before the High Court, counsel for the applicant submitted, that, Rule 24(4) of the Constitutional Court Rules 2016 did not apply as there were no disputes of fact between the parties.

He contended, further, that, the applicant's right to access under section 69(3) of the Constitution was violated by the law which gives the High Court the power to determine applications for leave to execute pending appeals.

Counsel for the applicant added, that, given that the Supreme Court becomes seized with a matter upon the noting of an appeal, it is befitting that this Court decides the issue of which court had jurisdiction over such an application.

In discourse with counsel, the Court noted that the High Court was not disabled by any law from entertaining applications for leave to execute pending an appeal.

The Court further quizzed counsel on the issue of an alternative remedy available to the applicant.

Counsel for the applicant conceded, that, the applicant could have sought leave to appeal against the decision by the High Court.

However, he submitted that the remedy was not practical as the same arguments would be regurgitated in the High Court and Supreme Court on appeal.

Counsel for the applicant countered by proposing, that, in the event the High Court's present authority was held as being unconstitutional, the Court was at large to utilise its just and equitable powers, under section 175(6) of the Constitution, to ensure that the legislature is given adequate time to address the lacuna that would arise as a result of its determination in the applicant's favour.

Counsel for the applicant argued, that, the respondent had not addressed the Court on whether or not there was an infringement of the right of access to a court under section 69(3) of the Constitution.

He submitted, that, the question was important as it brings into focus the issue as to whether the court a quo's determination rendered the appeal in the Supreme Court academic.

Counsel for the applicant reiterated that the applicant was challenging the authority of the lower court to deal with a matter that was pending before the Supreme Court.

He reasoned, that, alternatively placing the application before a different Judge in the High Court would suggest a concession that the alternative remedy was readily accessible.

RESPONDENT'S SUBMISSIONS

Per contra, counsel for the respondent submitted, that, there was a pending matter in the Supreme Court on the substance of the dispute between the parties.

However, he abandoned this line of argument after the Court pointed out that the question of the jurisdiction of the High Court was not pending before the Supreme Court.

In addition to the above, counsel submitted that there was an alternative remedy accessible to the applicant.

He asserted that the applicant's fears that the High Court would revisit its earlier decision could have been allayed by a request to place the matter before a different Judge. Thus, he reasoned that the applicant ought to be disabled from challenging the judgment of the court a quo before the Constitutional Court.

On behalf of the respondent, counsel argued that the grant of the present application would not be consonant with the interests of justice. He submitted, that, both the High Court and the Supreme Court have already decided the validity of the applicant's leadership credentials within the respondent.

In addition to the above, the respondent reasoned, that, the application for referral and leave to execute pending appeal were made in light of an order for spoliation granted against the applicant.

Counsel submitted, that, the balance of convenience favours the preservation of the status quo ante that existed before the applicant took matters into his own hands after he had voluntarily vacated the premises before again depriving the respondent's congregants of the same.

The respondent contended, that, the substantive application bears little, if any, prospects of success on the merits.

The contention made was that the determination of an application for leave to execute pending appeal by the High Court does not limit the jurisdiction of the Supreme Court to properly determine the matter on appeal.

In this regard, counsel for the respondent submitted, that, the applicant's right to access the Supreme Court was not affected by the High Court's decision ordering the execution of its own judgment pending appeal.

In addition, he contended that the hierarchy of the courts is not distorted by the grant of an application for leave to execute.

He stressed that the rights under sections 56(1) and 69(3) of the Constitution are not absolute.

Counsel argued strongly, that, the applicant had an obvious mis-apprehension of the law in suggesting that the application by the High Court of section 176 of the Constitution, to regulate its processes, violates the aforesaid fundamental rights.

He further submitted, that, the present proceedings are part of the applicant's strategy to unduly frustrate the respondent's administration of its operations and assets.

The contention by the applicant, that there is no alternative remedy, was also disputed.

Counsel for the respondent suggested, that, the Supreme Court is in a position to determine the substantive rights of the parties irrespective of the order for execution pending the appeal.

The respondent contended, that, the applicant had refrained from exposing the entire factual background of the dispute because it highlighted his deplorable conduct.

On the question of the alleged infringement of section 69(3) of the Constitution, counsel for the respondent submitted, that, the court a quo's determination did not constitute a diminution of the Supreme Court's authority over the appeal lodged by the applicant.

He argued, that, the High Court considered, as a factor, the balance of convenience in such applications when there was a need for it to regulate its own processes.

In addition, counsel for the respondent insisted that the court a quo's determination could only be challenged where a procedural irregularity was evident.

APPLICATIONS FOR DIRECT ACCESS UNDER RULE 21

An application for direct access to the Court is premised on the provisions of section 167(5)(a) of the Constitution. The section requires that the application be brought in terms of the rules of the Court. Rule 21(2) of the Constitutional Court Rules is relevant.

The principles governing applications for direct access are contained in Rule 21(3) of the Constitutional Court Rules which reads 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.”

The importance of compliance with the rules of this Court in an application for direct access to the Court was stressed in the case of Liberal Democrats & Ors v President of The Republic of Zimbabwe E.D. Mnangagwa N.O. & Ors CC07-18, wherein MALABA CJ advanced the following:

“An application for direct access is regulated by the Rules. An applicant has to satisfy all the requirements of the Rules. The Court found that the applicants failed to comply with the Rules in this regard. There has to be actual compliance with the contents of the provisions of the applicable Rule. It is not a question of mere formality. 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.”…,.

Section 167(5) of the Constitution provides, that, any person may bring a constitutional matter before the court, directly, subject to the Rules of the court.

The jurisdiction of the court, in considering an application for leave for direct access under the section can only be triggered when the court is satisfied that the matter is in the interests of justice.

Rule 21(8) of the Constitutional Court Rules sets out the factors that the court may consider in determining the phrase “interests of justice”: see Mwoyounotsva v Zimbabwe National Water Authority CC17-20…,.

The Rule reads as follows:

“In determining whether or not it is in the interest 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 her;
(c) Whether there are disputes of fact in the matter.”

See also Chiwaridzo v TM Supermarkets (Private) Limited & Ors CC19-20…,.

The Constitution limits the Court's jurisdiction, and, under section 167(2)(b), it is only empowered to preside over and determine constitutional matters and issues connected with decisions on constitutional matters.

Thus, the exercise of its jurisdiction over other matters that do not have the flavour of “a constitutional matter” would be an illegality under the law.

The court, therefore, must ensure that only those matters that can pass muster as a constitutional matter are placed before it. This has been referred to as a sifting mechanism to protect the court from unwarranted matters finding their way to the court's corridors.

The special jurisdiction of the court has been re-affirmed by a plethora of authorities.

The learned authors I. CURRIE and J. De WAAL, in their book The Bill of Rights Handbook, 6th Edition (Cape Town: Juta & Company, 2013)…, state that:

“The Constitutional Court is the highest court on all constitutional matters. If constitutional matters could be brought directly to it as a matter of course, the Constitutional Court could be called upon to deal with disputed facts on which evidence might be necessary, to decide constitutional issues, which are not decisive of the litigation and which might prove to be purely academic interest, and to hear cases without the benefit of the views of other courts having constitutional jurisdiction. Moreover, according to the Constitutional Court, it is not ordinarily in the interests of justice for a court to sit as a court of first and last instance in which matters are decided without there being any possibility of appealing against the decision.”

Turning to this jurisdiction, in the case of Denhere v Denhere & Anor CC09-19..., this Court held that:

“The underlying requirement is that the application ought to clearly illustrate that it is in the interests of justice that an order for direct access be granted. As was noted by the Court in the Lytton Investments (Private) Limited case supra, the filtering mechanism for leave for direct access effectively prevents abuse of the remedy.”

The present application will therefore be assessed in light of the above considerations.

The aforementioned factors will be considered cumulatively in order to ascertain whether or not it is in the interests of justice to grant the applicant direct access to this Court's jurisdiction.

This approach was re-affirmed in the case of Zimbabwe Development Party & Anor v President of The Republic of Zimbabwe & Ors CC03-18…, as follows:

“The correct approach in dealing with an application for an order of direct access to the Court is one that accepts the principle, that, all relevant factors required to be taken into account must be made available for consideration. The Court or Judge must consider all the relevant factors in deciding the question whether the interests of justice would be served by an order granting direct access to the court. The weight placed on the different factors in the process of decision making will depend on the circumstances of each case and the broader interests of a society governed by the rule of law.”

WHETHER OR NOT THE APPLICATION TO CHALLENGE THE DISCRETION OF THE HIGH COURT IS IN THE INTERESTS OF JUSTICE

The prospects of success in the intended substantive application constitute an important and fundamental consideration that principally informs the court's decision on whether or not to grant direct access.

In Mvududu v Agricultural and Rural Development Authority (ARDA) & Anor CC10-21, the court highlighted the importance of assessing the prospects of success as follows:

“One of the factors for consideration by the court is whether or not the application has prospects of success. In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Limited and Another CC11-18, the court stated:

'The court turns to determine the question whether the applicant has shown that direct access to it is in the interests of justice. Two factors have to be satisfied. The first is that the applicant must state facts or grounds, in the founding affidavit, the consideration of which would lead to the finding that it is in the interests of justice to have the constitutional matter placed before the court directly, instead of it being heard and determined by a lower court with concurrent jurisdiction. The second factor is that the applicant must set out, in the founding affidavit, facts or grounds that show that the main application has prospects of success should direct access be granted.'”

The application is premised on an alleged violation of the applicant's rights by the High Court.

The jurisdiction of this Court is restricted by the Constitution itself. As a consequence, the court is disabled, by law, from adjudicating on matters that are not in keeping with its jurisdictional competence.

In casu, the applicant's complaint on the determination handed down by the court a quo, in granting leave to execute, relates to the constitutionality of the remedy. He summarises the issues as being:

“Whether or not the High Court's common law jurisdiction to order an execution of its judgment pending an appeal already pending in the Supreme Court:

(a) Is consistent with the hierarchy of courts provided for in section 162 of the Constitution of Zimbabwe 2013.

(b) Involving as it does, a lower court determining the prospects of success of an appeal already before a superior court, is consistent with the mandatory duty of the courts to be impartial as provided for in subsections 1 and 2 of section 164 of the Constitution of Zimbabwe 2013.

(c) Involving as it does a lower court determining the prospects of success of an appeal already before a superior court is consistent with the fundamental right of every person to a fair hearing enshrined in section 69(2) as read with section 3(1)(b) of the Constitution of Zimbabwe 2013.

(d) Involving as it does a lower court determining the prospects of success of an appeal already before a superior court is consistent with the fundamental right of every person to access to the courts enshrined in section 69(3) as read with section 3(1)(b) of the Constitution of Zimbabwe 2013.”

The applicant has challenged the inherent power of the High Court to regulate its own processes, that is, to cause the suspension of, or, as the case may be, the enforcement of its own judgments pending an appeal before the Supreme Court.

In paragraph 7 of the draft order sought, the applicant seeks an order declaring that it is the Supreme Court, in the exercise of its inherent jurisdiction, that has the power to regulate its processes and that it may, in exceptional cases, order the execution of a judgment appealed against pending the determination of an appeal before it.

In my view, the issue that arises is: how the Supreme Court assumes the power to order the execution of a judgment that did not emanate from itself?

It is pertinent, therefore, to consider and examine the respective powers of the High Court and the Supreme Court and the extent thereof insofar as the execution of judgments pending an appeal is concerned.

THE INHERENT JURISDICTION OF THE SUPERIOR COURTS

The Supreme Court and the High Court are both Superior Courts. These courts have inherent power to regulate their processes in respect of matters that come before them, subject to limitations imposed on them by the common law or by statute.

Even though the Supreme Court is a superior court, it is a creature of statute. Its jurisdiction and the ambit of its powers are governed by the Constitution and the Supreme Court Act [Chapter 7:13]. Section 169(1) of the Constitution spells out the jurisdiction of the Supreme Court. It provides as follows:

“169 Jurisdiction of Supreme Court

(1) The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.

(2) Subject to subsection (1), an Act of Parliament may confer additional jurisdiction and powers on the Supreme Court.

(3) An Act of Parliament may provide for the exercise of jurisdiction by the Supreme Court, and, for that purpose, may confer the power to make rules of court.

(4) n/a”

In terms of sub-section (3) above, the jurisdiction of the Supreme Court, in civil appeals, is set out in section 21 of the Supreme Court Act. It provides as follows:

“21 Jurisdiction in appeals in civil cases

The Supreme Court shall have jurisdiction to hear and determine an appeal in any civil case from the judgment of any court or tribunal from which, in terms of any other enactment, an appeal lies to the Supreme Court.

Unless provision to the contrary is made in any other enactment, the Supreme Court shall hear and determine and shall exercise powers in respect of an appeal referred to in subsection (1) in accordance with this Act.”

I turn next to consider the jurisdictional ambit of the High Court.

Section 171 of the Constitution provides:

“170 High Court

(not relevant)

171 Jurisdiction of High Court

(1) The High Court —

(a) Has original jurisdiction over all civil and criminal matters throughout Zimbabwe;

(b) Has jurisdiction to supervise magistrates courts and other subordinate courts and to review their decisions;

(c) May decide constitutional matters, except those that only the Constitutional Court may decide; and

(d) Has such appellate jurisdiction as may be conferred on it by an Act of Parliament.

(2) An Act of Parliament may provide for the exercise of jurisdiction by the High Court and for the exercise of jurisdiction by the High Court and for that purpose may confer the power to make rules of court.”

The clear distinction between the High Court and the Supreme Court is evident from a reading of the provisions of the Constitution itself.

Whilst the High Court is said to be a court with original jurisdiction over all civil and criminal matters throughout Zimbabwe, the Supreme Court is, on the other hand, the highest court of appeal on matters - excluding constitutional matters.

It is obvious, therefore, that the jurisdiction of the Supreme Court is restricted to that established by the Constitution itself. This, however, must not be understood to mean that it is confined to the determination of appeals only.

Section 176 of the Constitution has confirmed the common law principle that Superior Courts have inherent power to regulate their own processes.

That section provides as follows:

“176 Inherent powers of the Constitutional Court, the Supreme Court and the High Court

The Constitutional Court, the Supreme Court, and the High Court have inherent power to protect and regulate their own process and to develop the common law or the customary law, taking into account the interests of justice and the provisions of this Constitution.”

The applicant contends, rightly so in my view, that the Supreme Court has inherent jurisdiction and the power to control its processes. It is a jurisdiction that the court exercises when it is seized with a process that is directly linked to matters that are pending before it.

The exercise of the inherent power to control its processes was clarified by the court in Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S). At 280-282, His Lordship CHIDYAUSIKU CJ stated:

"The first issue to be resolved is whether I have jurisdiction to entertain this Chamber application. This application is not one that involves original jurisdiction. It is ancillary to two appeals this court is already seized with. Once this court is seized with a matter, it has inherent jurisdiction to control its judgment: see South Cape Corporation v Engineering Management Services 1977 (3) SA 534 and the cases referred to in that case.

The inherent jurisdiction to control the court's judgment includes, in my view, jurisdiction to control the court's process, that is, jurisdiction to determine whether or not the execution of a judgment should be permitted pending the hearing of an appeal.

I will assume jurisdiction in this case on that basis.

I can also assume jurisdiction in terms of section 25 of the Supreme Court Act [Chapter 7:13]. I shall revert to this proposition later.

It is trite, that, at common law, a party cannot execute a judgment appealed against: see South Cape Corporation supra. The party wishing to execute despite the appeal can, however, approach the court a quo, if it has such jurisdiction, for leave to execute despite the noting of an appeal.

In the present case, the employees simply sought execution after registering the award without first seeking leave of the court to do so. The employer sought, unsuccessfully, an order from the High Court to stop the execution. The employees, after registering the arbitrator's award with the High Court, should have applied for leave to execute after the noting of an appeal.”

What emerges from the above is that the Supreme Court, in the exercise of its inherent power to control its own processes, can interfere in the process of the execution of a judgment on a matter pending before it on appeal.

The power of the Supreme Court to have recourse to its inherent power under the common law was confirmed in Universal City Studios Inc & Ors v Network Video (Pty) Ltd 1986 (2) SA 734 (A)…,. The Appellate Division of South Africa re-affirmed that the Supreme Court had the power to regulate its own procedures. The court stated:

“There is no doubt that the Supreme Court possesses an inherent reservoir of power to regulate its procedures in the interests of the proper administration of justice: see Stuart v Ismail 1942 AD 327; Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A) at 783A-G; also Ex parte Millsite Investment Co (Pty) Ltd 1965 (2) SA 582 (T) H at 585-6; Moulded Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis and Another 1979 (2) SA 457 (W) at 461F-462H.

It is probably true, that, as remarked in the Cerebos Food case (at 173E), the Court does not have an inherent power to create substantive law, but, the dividing line between substantive and adjectival law is not always an easy one to draw: cf Minister of the Interior and Another v Harris and Others 1952 (4) SA 769 (A) at 781C-H; Botes v Van Deventer 1966 (3) SA 182 (A) at 198H; Yew Bon Tew v Kenderaan Bas Mara [1982] 3 All ER 833 (PC) at 836B; Salmond Jurisprudence 11th ed at 503-4; Paton Jurisprudence 4th ed para 127.

Salmond (op cit at 504) states that:

'Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained.'”

The applicant, however, contends that the power that inheres in the Supreme Court, to control its processes, is wider than merely granting a stay of execution and includes the discretion to determine an application for leave to execute a judgment of the High Court where an appeal has been filed.

This power, contends the applicant, is found in the provisions of section 176 of the Constitution.

The common rule of practice is that the noting of an appeal against a judgment of the High Court automatically suspends the judgment, and, as a result, no execution against that judgment shall take place.

Any execution against the judgment is unlawful and of no legal force or effect.

The position on the execution of judgments pending appeal under the common law was settled in Reid & Another v Godart & Another 1938 AD 511, where DE VILLIERS JA..., said:

"Now, by the Roman-Dutch law the execution of all judgments is suspended upon the noting of an appeal; that is to say, the judgment cannot be carried out, and no effect can be given thereto, whether the judgment be one for money (on which a writ can be issued and levy made) or for any other thing or for any form of relief granted by the Court appealed from.

That being so, I see no reason why the Rule should be confined to judgments on which a sheriff may levy execution.

The foundation of the common law rule, as to the suspension of a judgment on the noting of an appeal, is to prevent irreparable damage from being done to the intending appellant, whether such damage be done by a levy under a writ, or by the execution of the judgment in any other manner appropriate to the nature of the judgment appealed from."

The learned Judge went on to hold -

"…, that irreparable damage might be done to the applicants if the judgment were not suspended on the noting of the appeal, for the estate of the testator might be distributed by an executor in terms of the previous will. The damage would be as irreparable as in a case where a levy is made under a writ."

This Court is not, however, seized with the issue of the stay of a judgment pending appeal, but, rather, with the execution of such judgment upon application by the judgment creditor.

The burning issue is whether or not the power of the court, the High Court, that granted the judgment has now been ousted by section 176 of the Constitution.

The seminal authority under Roman Dutch law, as to which court can determine such an application, is South Cape Corporation v Engineering Management Services 1977 (3) SA 534 in which CORBETT JA said…,.:

“Whatever the true position may have been in the Dutch courts, and, more particularly, the Court of Holland (as to which see Ruby's Cash Store (Pty) Ltd v Estate Marks and Another 1961 (2) SA 118 (T) at pp120-3), it is today the accepted common law rule of practice in our courts, that, generally, the execution of a judgment is automatically suspended upon the noting of an appeal, with the result, that, pending the appeal, the judgment cannot be carried out and no effect can be given thereto, except with the leave of the court which granted the judgment.

To obtain such leave, the party in whose favour the judgment as given must make special application: see generally Olifants Tin "B" Syndicate v De Jager 1912 AD 377 at p481; Reid and Another v Godart and Another 1938 AD 511 at p513; Gentiruco A.G. v Firestone SA (Pty) Ltd 1972 (1) SA 589 (AD) at p667; Standard Bank of SA Ltd v Stama (Pty) Ltd 1975 (1) SA 730 (AD) at p746.”

The authorities referred to above were concerned with, and dealt with, the principle that a judgment creditor is entitled, at law, to apply for leave to execute a judgment on appeal pending the determination of that appeal.

The question of which court has the jurisdiction to consider and determine such an application, or should do so, had not been settled.

This was the issue that the court was faced with in Hermannsburg Mission v Sugar Industry Central Board 1981 (4) SA 717...,. In that case, it was stated that:

“It is quite clear that it is only the court granting the order appealed against which has, at common law, or in terms of the Rules, the power to give leave to allow its judgment to be carried into effect pending the decision of the appeal, and it follows that this Court has no jurisdiction to grant any of the relief sought.”

When the above passage is viewed against the comments of the learned former Chief Justice in Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S), it must be accepted that the court that grants a judgment has the jurisdiction to entertain and grant leave for its execution pending appeal.

While it cannot be denied that section 176 of the Constitution grants all superior courts the inherent power to control their own processes, it cannot be gainsaid that the exercise of that power must be judicious. It is an exercise of discretion.

In the formulation of the argument by the applicant, it is contended, that, in considering an application for leave to execute pending appeal, the High Court is forced to join common cause with one or other of the litigants. Counsel referred to this process as the court taking sides.

I am unable to agree.

An application for leave to execute a judgment pending an appeal is available because, by operation of the law, the noting of an appeal automatically suspends the decision appealed against with the effect that it cannot be carried into execution. However, if, despite the appeal, the successful party wants to execute the judgment in the interim, he has to seek the leave of the court that granted the judgment.

The application would be premised on the principle that the court has an inherent power to control its own process.

The general rule is that a party who obtains an order against another is entitled to execute it.

It is trite at law that a successful litigant should not be deprived of the fruits of a judgment obtained in his favour, unless there are special circumstances or special grounds that justify a stay of execution to be granted as aforesaid.

The court, therefore, retains an inherent power to manage that process, having regard to the applicable rules of procedure.

What is required for a litigant to persuade the court to exercise its discretion in favour of granting a stay in the execution of the court's judgment has been stated in a plethora of authorities.

In Mupini v Makoni 1993 (1) ZLR 80 (S)…, the court stated the position of the law clearly thus:

“In the exercise of a wide discretion, the court may, therefore, set aside or suspend a writ of execution, or, for that matter, cancel the grant of a provisional stay. It will act where real and substantial justice so demands. The onus rests on the party seeking a stay to satisfy the court that special circumstances exist.

The general rule is that a party who has obtained an order against another is entitled to execute upon it.

Such reasons against execution issuing can be more readily found where, as in casu, the judgment is for ejectment or transfer of property, for, in such instances, the carrying of it into operation could render the restitution of the original position difficult: see Cohen v Cohen (1) 1979 ZLR 184 (A) 187C; Santam Investment Company Ltd v Preget (2) 1981 ZLR 132 (G) at 134G-135B; Chibanda v King 1983 (1) ZLR 116 (H) at 119C-H; Strime v Strime 1983 (4) SA 850 (C) at 852A.”

See also Humbe v Maduna & Ors SC81-21.

THE EXERCISE BY THE SUPERIOR COURTS OF THE POWER TO REGULATE THEIR PROCESSES

The Court is being urged to find, that, as a result of the incidence of section 176 under the Constitution, the High Court can no longer hear and determine applications for leave to execute against judgments emanating from that court in the event of appeals having been noted against such judgments.

According to the applicant, the common law power to do so that used to inhere in the High Court has been ousted by the Constitution and now reposes in the Supreme Court.

Any exercise of that power by the High Court, it is further argued, would be against the spirit of section 176 of the Constitution, and, consequently, illegal.

From the above authorities, it is evident that the High Court has the power to regulate its own processes, and, that this includes the ordering of the execution of its judgments pending appeal.

It is relief that is granted in special circumstances.

The execution of a judgment before it becomes final, by reason of appeal, is therefore recognized. However, this highly exceptional relief must find itself firmly founded upon good reasons for the exercise of this discretion on the part of the court.

The principles that a court must have regard to, in an application for a stay of execution of a judgment, are akin to those considered when deciding whether or not to grant leave to execute against a judgment pending appeal: see Nzara v Tsanyau and Others 2014 (1) ZLR 674 (H); Old Mutual Life Assurance Company (Pvt) Ltd v Makgatho HH39-07. They are:

“1. An appellant has an absolute right to appeal and test the correctness of the decision of the lower court before he or she is called upon to satisfy the judgment appealed against.

2. Execution of the judgment of the lower court, before the determination of the appeal, will negate the absolute right that the appellant has and is generally not permissible.

3. Where, however, the appellant brings the appeal with no bona fide intention of testing the correctness of the decision of the lower court, but is motivated by a desire to either buy time or harass the successful party, the court, in its discretion, may allow the successful party to execute the judgment notwithstanding the absolute right to appeal resting in the appellant.

4. In exercising its discretion, the court has regard to the considerations suggested by CORBETT JA in South Cape Corporations (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 545.

5. Where the judgment sounds in money, and the successful party offers security de restituendo, and the appellant has no prospects of success on appeal, the court may exercise its discretion against the appellant's absolute right to appeal.

6. An application for leave to execute pending appeal cannot be determined solely on the basis that the appellant has no prospects of success on appeal, especially where the whole object of the appeal is defeated if execution were to proceed: see Woodnov Edwards and Another 1966 RLR 335.”

Invariably, the decision of whether or not to grant an application for leave to execute turns on the relative strength or weakness of the appeal.

This necessarily entails the court that granted the judgment treading the same path during the initial proceedings leading to the judgment under appeal by the superior court. It also entails the court peeking into an appeal that is pending before the Appellate Court, and, in some way, pronouncing a verdict on it.

In this exercise, it takes into account the following considerations:

(a) The potentiality of irreparable harm or prejudice being sustained by the appellant if leave is granted;

(b) Conversely, the potentiality of irreparable harm or prejudice sustained by the respondent, on appeal, if leave to execute is not granted;

(c) The prospects of success on appeal, including the question as to whether the appeal is frivolous or vexatious or noted, not with the bona fide intention of reversing the judgment appealed against, but for some other motive e.g. to gain time.

(d) Where there is the possibility of irreparable harm to both parties, the balance of hardship or convenience.

In invoking the above considerations, a deliberation on the protection of the respective rights of the parties is also embarked on when assessing the issue of irreparable harm and potential prejudice.

Given that the order is not granted for the mere asking, and, further, that it is granted after an assessment of pertinent considerations, it becomes apparent that those safeguards are put in place to protect the rights of both parties that are constitutionally guaranteed, as prejudice may befall either party: see Amalgamated Rural Teachers Union of Zimbabwe & Anor v ZANU PF & Anor HMA37-18.

As is evident from the foregoing, the application to execute a judgment pending appeal is premised on the principle, that, the court exercises its inherent power to control its process in order to give effect to the over-riding principle that the court must ensure that its processes result in achieving real and substantial justice: see Santam Insurance Company Ltd v Paget 1981 ZLR 132...,.

In my view, the above dicta apply forcefully in the present matter.

The application of the remedy for leave to execute pending appeal forms part of the High Court's authority to regulate its own processes. It is not equivalent to a usurpation of the functions of the Supreme Court. This is so because, in assessing the prospects of success on appeal, the court is tasked with assessing whether the applicant has established an arguable case justifying that execution should be carried out notwithstanding the pending appeal.

The automatic stay of execution upon noting of appeal, as a rule of practice, is not a firm rule of law but a long-established practice regarded as generally binding, subject to the court's discretion.

At the core or pith of the inquiry relating to an application of this kind is the duty of the court to determine what is just and equitable.

In this endeavour, the court has to assess the prospects of success of the appeal.

In assessing the prospects of success in the upper court, the court has to consider whether the appellant has got an arguable case or whether it, the appeal, is manifestly a predictable failure.

This process cannot in any way be said to be a violation of the applicant's right to a fair hearing.

On the other hand, it constitutes the exercise by the court of its discretion in controlling its own process and ensuring that no abuse of court processes ensues.

Indeed, an assessment of prospects of success cannot be termed a violation of the applicant's right of access to the Supreme Court as, where an appeal is noted out of time, and the justice of the case demands, an order staying execution is always granted if circumstances require that a stay should be granted on the basis of real and substantial justice.

The courts, as confirmed by section 176 of the Constitution, have the inherent jurisdiction to control their own processes. Section 176 of the Constitution, in point of fact, re-affirms this common law power.

Apart from the expression that the courts have inherent power to control their own processes, the powers are not specified, nor are the processes set out.

An ambiguity then ensues when the exercise of discretionary power by one court is alleged to be an infringement of the power of another court.

What are inherent powers, and from whence does a court get such power?

The word 'inherent' is an adjective and is very wide in itself. In the Merriam-Webster Dictionary, it is defined as “involved in the constitution or essential character of something, belonging by nature or habit, or intrinsic.”

It has been defined variously as meaning existing in and inseparable from something as a permanent, a permanent essential or characteristic attribute or quality, an essential element, something intrinsic or essential. In legal terms, it may be defined as vested in or attached to a person or office as a right of privilege.

Thus, the inherent jurisdiction of superior courts, or their inherent powers, are those powers which are in-alienable from courts.

It therefore stands to reason, that, inherent powers are an integral part of the self-created general jurisdiction at common law and may be exercised by a court to do full and complete justice between the parties before it.

The principle of the inherent jurisdiction of superior courts was discussed by LORD DIPLOCK in Bremer Vulkan v South India Shipping (H.I.) [1981] A.C. 909…, wherein he stated as follows:

“The High Court's power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own processes so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice….,.

So, it would stultify the constitutional role of the High Court, as a court of justice, if it were not armed with power to prevent its process being misused in such a way as to diminish its capability of arriving at a just decision of the dispute.

The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an 'inherent power' the exercise of which is within the 'inherent jurisdiction' of the High Court.

It would, I think, be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of such acts which it needs must have power to do in order to maintain its character as a court of justice.”

I would venture to suggest, that, the exercise of inherent jurisdiction is a broad doctrine of the English Law allowing a court to control its own processes and to control the procedures before it.

The power stems, not from any particular statute or legislation, but is rather an integral part of the constitution of the court itself. These are powers invested in a court to control the proceedings brought before it. Thus, the court may use its power to ensure convenience and fairness in legal proceedings. It may utilize this power to stop abuse of processes or vexatious litigation.

On a proper construction of the law, I do not envisage a scenario arising out of one court's power under section 176 of the Constitution undermining the power of another court under the same provision.

The applicant has not placed before the court any credible argument that would lead to a finding that the inherent powers of the Supreme Court are being hijacked by the High Court when it determines applications for leave to execute a judgment pending an appeal.

Any determination in this regard would still be liable to be appealed against to the Supreme Court....,.

WHETHER THE APPLICANT HAS ESTABLISHED VIOLATIONS OF HIS FUNDAMENTAL RIGHTS

The applicant argues, that, the application of the common law remedy violated his constitutional rights under section 56(1) and section 69(3) of the Constitution. He posits that his request for a constitutional referral was neither frivolous nor vexatious.

Section 56(1) of the Constitution provides, that, all persons are equal before the law and have the right to equal protection and benefit of the law.

This Court has had occasion to consider the import of the provision in the case of Nkomo v Minister of Local Government, Rural & Urban Development & Ors CC06-16. ZIYAMBI JCC posited the following:

“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.”

Herein, the applicant merely raises bald allegations of his unequal treatment.

The basis of the alleged violation of his right arises from the election of the court a quo to deny his request for referral of the matter to this Court. It is the court a quo's determination of his request as frivolous and vexatious that he founds the claim under section 56(1) of the supreme law.

However, he fails to lay out any material facts to give credence to the allegation that the court a quo discriminated against him in applying the law. He has not shown any differentiation in treatment between him and any other party by the manner in which the court dealt with the matter's application for referral to the Court.

He has further not shown how the refusal by the court denied him the benefit of the law.

The case of Nkomo v Minister of Local Government, Rural & Urban Development & Ors CC06-16 is unequivocal on the consequences following upon the failure of an applicant to demonstrate the unequal treatment that he has been subjected to by the court a quo.

The Court made the following remarks…,.:

“Clearly, the guarantee provided by section 56(1) is that of equality under the law. 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....,. In short, the applicant has come nowhere near to establishing that his right, enshrined in section 56(1) of the Constitution, has been infringed. He is therefore not entitled to a remedy.”…,.

Further to the above, and more critically, the applicant has not challenged the validity of the exercise of the discretion by the High Court in casu.

In terms of section 175(4) of the Constitution, the relevant court may refuse the request for referral by the parties if it considers such an application to be frivolous or vexatious.

It is apparent that the presiding judicial officer is endowed with limited discretion in the matter.

The applicant does not challenge the substance of the court a quo's exercise of its discretion under 175(4) of the Constitution. The court found the application to be frivolous and vexatious.

It rightly dismissed the application.

The import of the term 'frivolous' was considered in the case of Williams & Anor v Msipha NO 2010 (2) ZLR 552 (S) by MALABA DCJ…, who stated the following:

“In S v Cooper & Ors 1977 (3) SA 475 (T) at 476D, Boshoff J said that the word 'frivolous' in its ordinary and natural meaning connotes an action or legal proceeding characterised by lack of seriousness as in the case of one which is manifestly insufficient. The raising of the question for referral to the Supreme Court, under section 24(2) of the Constitution, would have to be found, on the facts, to have been obviously lacking in seriousness, unsustainable, manifestly groundless or utterly hopeless and without foundation in the facts on which it was purportedly based.”

See also Martin v Attorney General & Anor 1993 (1) ZLR 153 (S)…,.

If due regard is had to the full background of the matter, it is evident that the application for referral was not made in good faith.

The applicant's action in forcibly entering upon the premises and depriving the respondent's representatives of possession of the premises was the sole reason for the institution of the spoliation proceedings in the High Court.

He resorted to self-help and sought the assistance of the court to unduly frustrate the respondent from effectively enforcing the judgment of the Supreme Court in which his dispute with the respondent's executives was settled.

By seeking a referral before the hearing of the application for leave to execute, as rightly alleged by the respondent, the applicant sought to buy more time to vex the respondent and further his cause in the dispute regarding ownership of the church premises.

In short, the dismissal of his referral application was in no way a violation of section 56(1) of the Constitution.

In my view, this argument lacks merit and cannot be sustained.

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD
Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

Section 18 of the repealed Constitution provided that:“18 Provisions to secure protection of law(1) Subject to the provisions of this Constitution, every person is entitled to the protection of the law.”The content of the right, as provided for by the section, was interpreted to be nothing more than the right ...

Section 18 of the repealed Constitution provided that:

“18 Provisions to secure protection of law

(1) Subject to the provisions of this Constitution, every person is entitled to the protection of the law.”

The content of the right, as provided for by the section, was interpreted to be nothing more than the right to demand and be protected by the due process of the law. It thus protected every person against arbitrary decisions that do not follow the laid down precepts of the law - be they substantive or adjectival: see Martin v Attorney-General 1993 (1) ZLR 153 (SC); Mawarire v RG Mugabe and Others CC01-13 and Matiashe v Mahwe N.O. and Another CC12-14.

With the adoption of the Constitution, the right to the protection of the law was re-enacted and provided for in section 56.

It is common cause that section 56(1) is differently worded from section 18 of the repealed Constitution....,.

Section 56(1) of the Constitution provides 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.”

The right to the protection and benefit of the law, as guaranteed by section 56(1), has been construed narrowly: see Nkomo v Minister of Local Government, Rural and Urban Development and Others 2016 (1) ZRL 113 (SC) and Marx Mupungu v Minister of Justice, Legal & Parliamentary Affairs and Others CC07-21.

Thus, instead of the right to the protection and benefit of the law being a right to due process simpliciter, the right guaranteed by section 56(1) of the Constitution has been modified or discoloured, as it were, by the insertion of the word “equal” in the provision immediately preceding the right.

An applicant seeking to rely on the right must not only allege and prove non-observance of due process but now bears the additional onus of alleging and ultimately showing that other persons similarly positioned are afforded the protection and benefit of the law that he or she craves.

In Nkomo v Minister of Local Government, Rural and Urban Development and Others 2016 (1) ZRL 113 (SC), it was held that section 56(1) of the Constitution provides equality to 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.”…,.

Similarly, in Marx Mupungu v Minister of Justice, Legal & Parliamentary Affairs and Others CC07-21 it was observed, in part, that:

“…,. 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.”…,.

I do not read the above cases as having changed the core content of the right to the protection of the law as upheld by this Court prior to 2013.

I read the above cases as qualifying that right, or, as PATEL JCC put it in Marx Mupungu v Minister of Justice, Legal & Parliamentary Affairs and Others CC07-21 as simply “narrowing” the scope of the enjoyment of the right.

Put differently, I do not read the judgments of this Court as requiring more than a specific averment and a demonstration by the facts alleged in the founding papers, that, similarly placed litigants were afforded the right that the applicant wishes to assert.

Viewed in this sense, the averment will, in the converse, mean that denying the applicant the right in such circumstances will amount to denying him or her equal treatment before the law. This will obviously constitute a violation of the right embodied in the section.

I am fortified in making this finding from the words of ZIYAMBI JCC in Nkomo v Minister of Local Government, Rural and Urban Development and Others 2016 (1) ZLR 113 (SC)…, where her Ladyship cites with approval the dicta in Van der Walt v Metcash Trading Ltd 2002 (4) SA 317 (CC) to the effect, that, the South African equivalent of our section 56(1) of the Constitution means that all persons in a similar position must be afforded the same right to access the courts and to the same fair and just procedures with regards to such access.

In finding against the applicant in that matter, her Ladyship continued:

“Clearly, the guarantee provided by section 56(1) is that of equality under the law. 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….,. In short, the applicant has come nowhere near establishing that his right enshrined in section 56(1) of the Constitution has been infringed. He is therefore not entitled to a remedy.”...,.

I am aware that the requirement to specifically plead and ultimately prove that other persons similarly placed were protected by and benefited from the law might appear superfluous and pedantic...,.

However, the position of the law is that it is necessary that in all instances where the right is invoked, the equality before the law and the equal treatment under the law that the section envisages is specifically pleaded and ultimately proved, even if, in some instances, the proof thereof will be common cause or easy to furnish....,.

The applicant maintained that the position of this Court, holding that pleading unequal treatment or differentiation whenever this right is invoked is a requirement, was erroneous and ought to be set aside by a full Bench of the Court.

Put differently, he submitted that this Court ought to reverse itself.

In pressing his argument in this regard, the applicant made no attempt to distinguish the facts of this matter from the cases cited above that give a narrow interpretation of the right guaranteed by section 56(1) of the Constitution.

He did not seek to side-step the ratio decidendi of those cases but simply attacked such as being erroneous.

He thus did not lay any possible basis upon which this Court can contemplate revisiting the position that it has taken in interpreting the provisions of section 56(1) of the Constitution.

He cannot be helped.

It is common cause that the applicant did not plead his case with the requisite particularity that would have brought him within the ambit of the alleged breach of the fundamental right protected under section 56(1) of the Constitution.

CC06-16 : SAMUEL NKOMO vs MINISTER OF LOCAL GOVERNMENT, RURAL & URBAN DEVELOPMENT and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and GOVERNMENT OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

By reason of an allegation by the applicant of a breach of his fundamental right, enshrined in section 56(1) of the Constitution, this application gained direct access to the Constitutional Court (“the Court”) through the front door, which is section 85(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 ...

THE APPLICATION

The applicant averred, that, he is a Member of Parliament for Lobengula Constituency in Bulawayo (having been so elected in the harmonised elections held on 31 July 2013) and residing in Bulawayo. He charges the respondents, and, in particular, the first respondent who is the Minister responsible for issues of local Government, with a violation of section 267 of the Constitution.

This is because of their alleged failure to bring about the enactment of such an Act of Parliament as would give effect to the provisions of Chapters 2 (which sets out the national objectives) and 14 (which deals with devolution and setting up of provincial governance) of the Constitution of Zimbabwe thus bringing into operation devolution in Zimbabwe.

He alleges, that, the failure of the respondents, since 1 August 2013 when the full Constitution took effect, to bring a draft Bill before Parliament for enactment constitutes a breach of sections 2 (which renders conduct inconsistent with the Constitution invalid to the extent of the inconsistency) and 5 (this section defines the tiers of Government in Zimbabwe, one of them being Provincial and Metropolitan Councils) of the Constitution.

He therefore seeks the following relief:

“IT IS ORDERED THAT:

1. The respondents failure to enact the law covered and as envisaged in Chapter 14 of the Constitution, in particular, sections 267(2), 273(4) and 270(2) of the Constitution of Zimbabwe, is a breach of the Constitution of Zimbabwe.

2. The failure by the respondents to enact the laws necessary to operationalize Chapter 14 in so far as it relates to Provincial Governance is a violation of the applicant's right to equal protection and benefit of the law as defined by Article 56(1) of the Constitution.

3. The respondents must bring before Parliament such a Bill or Bills as covered by sections 273(4), 267(2) and section 270(2) of the Constitution of Zimbabwe within 45 days from the date of issuance of this order by the Court.

4. That respondents, jointly and severally, each paying the other to be absolved pays costs of suit.”

I note here, that, section 273(4) of the Constitution does not exist.

Section 273 of the Constitution, in subsections (1) and (2) makes provision relating to the establishment and functions of provincial and metropolitan councils and for the filling of vacancies therein.

The application is opposed by the respondents.

The first respondent denied any neglect in bringing the Bill before Parliament. He annexed to his opposing affidavit a draft Bill which he termed a working draft. He explained that legislation of such importance cannot be hurriedly placed before Parliament and that he is still in the process of carrying out the necessary consultations with the various entities as prescribed by section 267(2)(b) of the Constitution.

The respondents also contend, that, the applicant has not, save for a mere statement alleging an infringement of his right conferred by section 56(1) of the Constitution, to equal protection and benefit of the law, demonstrated how that right has been infringed by the respondents. Nor has the applicant adduced any evidence to substantiate his allegation that “the State is limping” because there are no metropolitan and provincial councils as provided for in section 5 of the Constitution.

It is further contended by the respondents, that, the second respondent's responsibility for bringing legislation before Parliament extends only to those matters which fall under his portfolio and that the Bill envisaged by section 267 of the Constitution is not one of those matters.

In any event, so averred the respondents, a reasonable period was required within which to produce the legislation in question and it could not be hurried through within the period of 45 days suggested by the applicant.

It was submitted that the application was devoid of merit and ought to be dismissed with costs....,.

The only question properly before the Court for determination, and which I deal with hereunder, is whether there has been an infringement of the applicant's fundamental right enshrined in section 56(1) of the Constitution to equal protection and benefit of the law.

INFRINGEMENT OF SECTION 56(1) OF THE CONSTITUTION

Section 56(1) of the Constitution provides:

“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.”

The right guaranteed under section 56(1) of the Constitution 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 Van der Walt v Metcash Trading Limited (CCT37/01) [2002] ZACC 4; 2002 (4) SA 317; 2002 (5) BCLR 454 where reliance on the provisions of section 9(1) of the Constitution of South Africa (which is identical in its terms to section 56(1) of the Constitution) depended solely on the inequality of outcome of two applications to the Supreme Court of Appeal, the Constitutional Court described the right as follows:

”It is clear that the provision means that all persons in a similar position must be afforded the same right to access the courts and to the same fair and just procedures with regard to such access.”

And, in Sarrahwitz v Martiz N.O. & Anor (CCT93/14) [2015] ZACC 14; 2015 (4) SA 491 (CC); 2015 (8) BCLR 925 (CC), the same Court said:

“This subsection guarantees everyone the right to equal protection and benefit of the law. The concept of 'equal protection and benefit of the law' suggests that purchasers who are equally vulnerable must enjoy the same legal endowments irrespective of their method of payment.”

Clearly, the guarantee provided by section 56(1) of the Constitution is that of equality under the law.

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.

The failure by the respondents to enact the legislation contended for has not been shown to discriminate against him in favour of others. In short, the applicant has come nowhere near to establishing that his right enshrined in section 56(1) of the Constitution has been infringed.

He is therefore not entitled to a remedy.

CC13-20 : THABANI MPOFU vs ZIMBABWE ENERGY REGULATORY AUTHORITY and MINISTER OF ENERGY AND POWER DEVELOPMENT and GREEN FUELS (PVT) LTD
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWEJCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA JCC

This is a court application made in terms of section 85(1) of the Constitution of Zimbabwe (No.20) Act 2013 (the Constitution') which section provides for direct access to this Court in the pursuance of the protection of fundamental rights and freedoms as enshrined in Chapter 4 of the Constitution, and also, alternatively, direct access ostensibly motivated pursuant to section 167(5) of the Constitution.

The applicant seeks an order declaring the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I.17 of 2013 (hereinafter referred to as “the Petroleum Regulations”') and the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Amendment Regulations (No.1) S.I. 147A, 2013 (hereinafter referred to as 'the Amendment Regulations') to be ultra vires the Constitution and that they be set aside....,.

In order for one to found a claim in terms of section 56(1) of the Constitution, it must be demonstrated, that, the party concerned has received unfair treatment.

The requisite considerations to be made were well canvassed in the case of Nkomo v Minister of Local Government, Rural & Urban Development & Ors CC06-16, at page 119A-B, wherein it was stated in para 21:

"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."…,.

The Court's interpretation of section 56(1) of the Constitution above is in line with the interpretation of the right to equal protection of the law as articulated in the South African jurisdiction.

In the case of Sarrahwitz v Martiz N.O. & Anor 2015 (4) SA 491…, the South African Constitutional Court interpreted the right in the following manner:

“This subsection guarantees everyone the right to equal protection and benefit of the law. The concept of 'equal protection and benefit of the law' suggests that purchasers who are equally vulnerable must enjoy the same legal endowments irrespective of their method of payment."

The applicant has failed to prove the aforementioned requirements.

Instead, he alleges that he has been treated unfairly as compared to the third respondent. The allegation is premised on the fact, that, the third respondent has established itself and enjoys unchallenged control in the supply of blended fuel in the country.

However, the position adopted by the applicant is not conferred by law as envisioned in section 56(1) of the Constitution.

The Act and Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations SI 17 of 2013 set out the requirements for the blending and sale of blended fuel after one has obtained the requisite licence.

The Act and Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations SI17 of 2013 apply to the general citizenry of Zimbabwe and not to a specific individual or company. The third respondent cannot therefore be penalised for taking advantage of the provisions therein.

The same opportunity is open to the applicant or any other interested party.

It is the applicant's contention, that, the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I. 17 of 2013 are in contravention of section 134(b) and (c) of the Constitution.

Section 134 of the Constitution reads as follows:

“Parliament may, in an Act of Parliament, delegate power to make Statutory Instruments within the scope of and for the purposes laid out in that Act, but -

(a) Parliament's primary law-making power must not be delegated;

(b) Statutory Instruments must not infringe or limit any rights and freedoms set out in the Declaration of Rights;

(c) Statutory Instruments must be consistent with the Act of Parliament under which they are made.

(d)…,."

Since it has already been noted that the applicant has failed to make out a case for the infringement of fundamental rights, it is therefore not necessary to deal with section 134(b) of the Constitution.

SSC43-23 : TAPFUMANEYI ALIFANARI vs THE STATE
Ruled By: GUVAVA JA, UCHENA JA and KUDYA JA

This is an appeal against the judgment of the High Court Harare, handed down on 21 November 2018, convicting the appellant of murder with actual intent as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the “Act”) and sentencing him to death.

The automatic appeal is against the sentence of death.

After hearing submissions from counsel for both parties, we, with their consent, dismissed the appellant's appeal and indicated that reasons would follow in due course. These are they.

In spite of the order having been granted with the consent of the parties, reasons for the granting of that order are necessitated by the appellant having been sentenced to death, which, in terms of section 48(2)(e) of the Constitution, entitles him to an application for pardon or commutation of the penalty to the President, which requires the judgment of this Court.

In terms of subsection 2(b), a final judgment of this Court is required for the execution of the death penalty.

Section 48(2)(b) and (e) of the Constitution provides for such circumstances as follows:

“(2) A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances, and —

(a)…,.

(b) The penalty may be carried out only in accordance with a final judgment of a competent court;

(c)…,.

(i)…,.

(ii)…,.

(d)…,.

(e) The person sentenced must have a right to seek pardon or commutation of the penalty from the President.”…,.

FACTUAL BACKGROUND

The appellant was charged with murder in terms of section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in that he caused the death of Patrick Philemon who was his uncle. He was convicted on the common cause evidence that he had caused the deceased's death. His confirmed warned and cautioned statement, which sets out in detail how the offence was committed, reads as follows:

“I admit the charge of murdering Patrick Philimon that is being leveled against me. On the morning of 10 December 2015, I was sitting at home facing the North and I saw Patrick Philimon who was sitting on a rock on the foot of a hillock. I stood up and went towards where he was. After walking for a short distance, I picked a piece of a metal that is used to stretch the fence in the field. I intended to use it to attack Patrick Philimon because we had a disagreement over his having chased me away from home. I continued with my journey towards where he was. When I got near him, I went round the hillock so that he would not see me and also that he would not suspect that there was someone drawing close to where he was. While I was behind the hillock, I became afraid of what I wanted to do. I then went to a Muzhanje tree that was nearby while thinking of what I should do. I gathered courage (encouraged myself) and went where Patrick Philimon was. I got to where he was, while creeping stealthily behind him, and struck him with the piece of metal three times on the head near the ear.

Patrick Philimon stood up crying and said 'nephew forgive me'.

I did not want to forgive him so I went on striking him with the piece of metal in the head until he fell down. As he was down, I struck him again about five times until I was satisfied that he was dead. I left this place and went back the same way I had come. I hid the piece of metal in the grass and went to the dam to wash my body and clothes, which were bloodstained. I put the clothes back on when they had dried and the bloodstains were no longer properly visible and went back home.”

At the appellant's trial, the statement was produced by the State with the consent of the appellant's counsel.

The appellant admitted, that, he had written it in Shona on a piece of paper after which it was recorded in English, and, subsequently, confirmed by a Magistrate.

The appellant told the court a quo of how he led the police to the scene of the murder and indicated where he had hidden the metal he used to murder the deceased, which was recovered.

The appellant admitted, that, he had had an adulterous affair with the deceased's wife, and had, as a result, been ordered, by the Headman's court, to leave the deceased's homestead where he had been staying for several years after his return from Harare.

The court a quo convicted the appellant of murder with actual intent.

It, after finding that the appellant had committed the murder in aggravating circumstances, and that no mitigating factors which could justify the avoidance of the death sentence had been established, sentenced him to death.

In terms of section 44 of the High Court Act [Chapter 7:06], the death sentence entitled the appellant to an automatic appeal. He, however, appealed against sentence only on the following grounds:

“1. In passing the death sentence, the court a quo misdirected itself in finding that there were aggravating factors and no extenuating circumstances.

2. The discrimination imposed by the Constitution on the imposition of the death sentence is unjustifiable in a democratic society like Zimbabwe.”

In his heads of argument, the appellant's counsel stated, that, after reading the judgment of this Court in Moyo v The State SC29-21 he was abandoning the second ground of appeal....,.

We were satisfied, that, the appellant had correctly abandoned his second ground of appeal because the alleged discrimination is provided for in section 48(2)(c) and (d) of the Constitution which provides as follows:

“(2) A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances, and —

(a)…,.

(b)…,.

(c) The penalty must not be imposed on a person —

(i) Who was less than twenty-one years old when the offence was committed; or

(ii) Who is more than seventy years old;

(d) The penalty must not be imposed or carried out on a woman; and

(e)…,.”…,.

It is trite, that, the court's duty is to interpret the law and the Legislature's is to enact laws. The complaint about the alleged discrimination should therefore be directed to the Legislature.

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

The four appeals are against parts of the High Court's Judgment HB157-23 (“the court a quo”) which was handed down on 27 July 2023.

The appeals are against the decision of the court a quo setting aside the thirteenth respondent's decision to accept the appellants nomination papers as candidates for the impending harmonised general elections.

The four appeals SCB59/23, SCB60/23, SCB61/23 and SCB62/23 were consolidated and heard by this Court on 2 August 2023.

On 3 August 2023, we issued the following order:

1. The appeals be and are hereby allowed with costs.

2. The judgment of the court a quo be and is hereby set aside and substituted as follows:

'The applications be and are hereby dismissed with costs.'

3. The reasons for the court's decision will follow in due course.”

We undertook to furnish reasons for our disposition. These are they.

FACTUAL BACKGROUND

On 21 June 2023, the fourteenth respondent constituted a Nomination Court to receive submissions for the nominations of candidates for the election of constituency members to the National Assembly for the Bulawayo Metropolitan Province. This was in accordance with Proclamation 4 of 2023, gazetted under S.I. 85 of 2023 by the President.

The determinant facts of this appeal emanate from the events that transpired on 21 June 2023 at the Nomination Court.

The appellants appeared before the Nomination Court for their nominations as candidates for elections scheduled for 23 August 2023. The nomination officer accepted their nominations and registered them as candidates.

The respondents, except for the thirteenth to fifteenth respondents, applied to the court a quo for the setting aside of the appellants (respondents a quo) nominations. They alleged, that, their nomination papers were in disarray. They further alleged that when the appellants lodged their papers, before 4pm, they were advised to correct them. The respondents further alleged, that, the appellants thereafter filed their corrected papers out of time, after 4pm, in violation of the Electoral Act [Chapter 2:13] (“the Act”). They further alleged that, by 4pm, the appellants were outside the courtroom frantically trying to rectify their nomination papers. They further asserted, that, such nominations were null and void.

In response, some of the appellants asserted that their papers were in order and that they lodged them with the nomination officer who accepted them before 4pm. The other appellants stated, that, their papers had errors which were pointed out by the Nomination Court and were corrected and filed with the nomination officer before 4pm. Some of the appellants maintained, that, they were in court with their corrected papers which were accepted before 4pm.

In his opposing affidavit, the 13th respondent, Innocent Ncube, in his official capacity as the Provincial Elections Officer, and, for and on behalf of the Zimbabwe Electoral Commission (“ZEC”) and the Chairperson of ZEC, indicated that the nomination papers were procedurally and timeously lodged between 10am and 4pm. He also pointed out that the designated courtroom could only accommodate 12 to 15 people at any time. During the proceedings, at 3:55pm, he announced that all prospective candidates who were queuing outside because of his administrative decision (to allow 12 to 15 people at any time) should hand over their nomination papers to the police officer as the court was due to close at 4pm. The police officer collected all the nomination papers and handed them over to the thirteenth respondent before 4pm. Thereafter, the nomination officer would call in those whose papers he would be processing.

In respect of the form, Annexure “B” relied upon by the applicants a quo, he pointed out that it was a register in which the secretary captured the times when the nomination forms were inputted into the Zimbabwe Electoral Commission's (ZEC) records. In other words, he stated that the form was for the purpose of data capture into ZEC's system and not a record reflective of the time when the nomination papers were lodged with the nomination officer.

On the basis of the above facts, the court a quo found for the applicants a quo (now respondents). It held that the appellants nominations had been lodged after the stipulated cut-off time of 4pm. It, therefore, declared the nominations of the appellants as null and void.

PROCEEDINGS BEFORE THE COURT A QUO

The parties made submissions on both the preliminary points and the merits before the court a quo, after which the court a quo rendered a composite judgment for all the applications, which had been consolidated by consent.

Counsel for the thirteenth, fourteenth, and fifteenth respondents raised a preliminary point, that, the court a quo had no jurisdiction. He submitted that all the applications ought to have been filed in the Electoral Court.

Counsel for the first to the sixth appellants associated himself with the submissions made by counsel for the thirteenth, fourteenth, and fifteenth respondents on jurisdiction.

He further submitted, that, there was no application before the court because the first to twelfth respondents had irregularly truncated the dies induciae. Counsel also argued that the respondents had no locus standi and that the applications were based on hearsay evidence. He submitted that the first to twelfth respondents had not attended the Nomination Court but sought to rely on social media reports and a document, Annexure “B” which was differently interpreted by the Electoral Commission.

He also argued in limine, that, there were material disputes of fact that could not be resolved on paper.

He further submitted, that, there was a material non-joinder of Citizens Coalition for Change party (CCC) which had sponsored some of the appellants. In support of this assertion, he contended that the party would be prejudiced in obtaining proportional representation seats.

Finally, on preliminary points, counsel submitted that the applications were an abuse of the court process.

Counsel for the seventh to twelfth appellants in SCB59/23 associated himself with the preliminary points raised by counsel for the thirteenth, fourteenth, and fifteenth respondents and counsel for the first to the sixth appellants. He emphasised that the applications were based on hearsay evidence and that only the Electoral Court had exclusive jurisdiction to hear the applications.

Counsel for the first to fourth appellants in SCB61/23 associated himself with submissions made by counsel who addressed the court before him.

Counsel for the appellants in SCB60/23 also associated himself with submissions that had been made by counsel before him.

Per contra, counsel for the first to twelfth respondents opposed all the preliminary points raised, characterising them as meritless.

He relied on the case of Kambarami v 1893 Mthwakazi Restoration Movement Trust and Others SC66-21 for the proposition, that, the court had jurisdiction. Regarding the validity of the applications, he submitted that the parties had attended a case management meeting and agreed on truncating the dies induciae.

On locus standi, he submitted that the respondents had a legitimate interest in the nomination proceedings because they had a direct and substantial interest in the outcome of the process. In relation to the applications being based on hearsay evidence, he contended, that, the respondents relied on public information and that there was Annexure “B” which supported their position. He further submitted that there were no material disputes of fact. A robust approach would resolve the matter.

Counsel for the first to twelfth respondents further submitted, that, the applications a quo were not an abuse of the court process given the substantial interests which the respondents had in the nomination of candidates for the constituencies where they were registered voters.

Finally, in relation to the non-joinder of Citizens Coalition for Change party (CCC) he argued that the party had no direct and substantial interest in the acceptance of the nomination papers.

The court a quo deferred the determination of the preliminary points to the end of the hearing and sought to be addressed on the merits.

Counsel for the first to twelfth respondents submitted, in support of the applications, that, the nominations ought to be nullified since they were accepted after 4pm in defiance of section 46 of the Electoral Act [Chapter 2:13]. He further submitted that the nomination officer unlawfully opened the court to specifically allow the affected candidates to present their papers out of time. He argued that the police officer who collected the papers was not a nomination officer. Annexure “B” confirmed that the nomination papers were filed out of time.

Counsel for the thirteenth to fifteenth respondents submitted that Annexure “B” was not a document reflective of the times when the nomination papers were lodged with the nominations officer. Further, he submitted, that, the nomination papers were submitted and received before the cut-off time of 4pm on the day in question. He emphasised that the officers of the Zimbabwe Electoral Commission (ZEC) who placed evidence before the court, through their supporting affidavits, spelt out that no nomination papers were submitted after 4pm. Finally, he submitted that there was no breach of section 46 of the Electoral Act.

Counsel for the first to the sixth appellants in SCB59/23 submitted, that, the respondents were relying on hearsay evidence that the social media was awash with; information that the appellants nomination papers were in disarray and filed out of time. He pointed out that the appellants filed their papers in compliance with section 46 of the Electoral Act before 1600 hours. Further, in opposing the allegations, he relied on the Zimbabwe Electoral Commission (ZEC) and the nomination officer's evidence that Annexure “B” was not a document indicative of the lodgement of nomination papers, but, that the time reflected on it related to the time of data capture.

Counsel for the seventh to twelfth appellants in SCB59/23 was also critical of Annexure “B” and he agreed with submissions by counsel for the first to the sixth appellants in SCB59/23 on it. He submitted that the respondents were relying on hearsay evidence and that they failed to discharge the onus and to prove the factual basis of their allegations. Their evidence was speculative as they relied on social media assertions.

Counsel for the appellants in SCB60/23 associated himself with submissions made by counsel who addressed the court before him. He emphasised, that, his clients submitted their nomination papers on time. He further added that the collection of nomination papers by the police officer, at the instruction of the nomination officer, did not amount to contravening section 46 of the Electoral Act.

Counsel for the first to fourth appellants in SCB61/23 associated themselves with counsel for the other appellants submissions.

DETERMINATION OF THE COURT A QUO

The court a quo gave a composite judgment. It dismissed all the preliminary points and made a finding that Annexure “B” was a document prepared by a Zimbabwe Electoral Commission (ZEC) official and that it spoke for itself, that, the nomination papers were submitted after 4pm. It found that the submission of papers from the appellants, through the police officer, was unlawful. It thus declared the nominations as null and void and issued the following order:

“IT IS DECLARED THAT:

1. That, the decision of the 1st Respondent, sitting as a nomination court at Bulawayo on 21 and/or 22 June 2023 to accept the following Respondents nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 was in contravention of section 46(7) & (8) of the Electoral Act [Chapter 2:13].

2. That, the decision of the 1st Respondent, sitting as a Nomination Court at Bulawayo on 21 and/or 22 June 2023, to accept the following Respondents nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 is declared null and void and is hereby set aside.

ACCORDINGLY, IT IS ORDERED THAT:

3. 1st Respondent is prohibited from including the names of the following Respondents in the preparation of ballot papers to be used in the general elections scheduled to be conducted on 23 August 2023.

4. Respondents shall jointly and severally pay the costs of suit.

OBERT MANDUNA; ERECK GONO; DOUGLAS NCUBE; GIFT SIZIVA; SANPOULUS MAPLANKA; PRINCE DUBE; NQOBIZITHA NDLOVU; DESMOND MAKAZA; BAJILA COLLINS DESCENT; SICHELESILE MAHLANGU; DESIRE MOYO; ALELAIDE MHLANGA; NOMPILO BHEBHE; SURRENDER KAPOIKILU; RAPHAEL PASHOR SIBANDA; NTANDOYENKOSI MINENHLE GUMEDE; FRANK MHLANGA.

5. The application against Zvikwete Innocent Mbano be and is hereby dismissed with costs.

6. The application against ADMORE GOMBA, NIGEL NDLOVU, SONENI MOYO, DINGILIZWE TSHUMA, STRIKE MKANDLA & ALBERT MHLANGA be and is hereby withdrawn.”

GROUNDS OF APPEAL

Aggrieved by the judgment of the court a quo in all the four applications, the appellants in SCB59, 60, 61 and 62 of 2023 launched appeals with this court on more or less similar grounds. All the appellants grounds of appeal can be summarised as captured in SCB59/23 except for ground 5 which is specific to candidates for Citizens Coalition for Change party (CCC).

Ground 5 speaks to non-joinder of Citizens Coalition for Change party (CCC). It reads as follows:

“(5) Having found that the Citizens Coalition for Change political party was adversely affected by the proceedings before it, the court a quo erred in relating to and affording an application which adversely affected its interests without affording the concerned political party the opportunity of being heard.”

The grounds of appeal which are similar for purposes of these appeals, as discerned from the record, are as follows:

(1) Having heard the argument on points in limine, including critical point (sic) on the jurisdiction, the court a quo grossly misdirected itself and erred in proceeding to hear the argument on the merits of the matter without making a determination on the points taken before it in limine litis.

(2) The court a quo erred in assuming jurisdiction over a matter which is by constitutional and statutory command subject to the exclusive jurisdiction of the Electoral Court and so erred in entertaining a review disguised as a declaratur.

(3) The court a quo erred and misdirected itself having invented their own dies induciae in violation of the rules and of superior court authority and so erred in condoning a fatal defect and where no application for condonation had been made.

(4) The court a quo erred in granting relief to parties who had no locus standi in judicio, who could not swear positively to the “facts” they relied upon and who sustained their cause on the basis of objectively established falsehoods.

(5)…,.

(6) The court a quo, having found that there was a dispute of fact material to the resolution of issues before it, erred in purporting to resolve such dispute in the absence of any work tools for such resolution and so erred in making credibility findings, on motion, that were unsupported by the evidence placed before it.

(7) The court a quo erred in not finding that matters factual stood to be resolved on the basis of the position given by the Electoral Commission as well as appellants who were physically in attendance at the Nomination Court and which positions could not be gainsaid by the first to twelfth respondents hearsay evidence.

(8) The court a quo erred in not concluding that appellants had timeously presented their papers, had an absolute right to have them processed, and, accordingly, had been properly declared duly nominated by the Nomination Court.

SUBMISSIONS BEFORE THIS COURT

(1) Submissions on the Merits

Counsel for the first to sixth appellants, in SCB59/23, submitted that the High Court had no jurisdiction to hear the matter. He submitted that section 161 of the Electoral Act as read with section 5 of the Judicial Laws Amendment (Ease of Settling Commercial and Other Disputes) Act 2017 constituted the Electoral Court as a specialised division of the High Court, and, therefore, now has jurisdiction to hear an application for a declaratur.

He further argued, that, the relief sought was worded in the form of a review relief.

Further, he submitted, that, the authority of Kambarami v 1893 Mthwakazi Restoration Movement Trust and Others SC66–21, relied upon by the court a quo, was rendered per incuriam and, thus, it was inapplicable.

It was also counsel for the first to sixth appellants in SCB59/23 submission, that, there were no valid applications before the High Court. He argued, that, the court a quo disregarded two binding authorities of this Court to the effect that an applicant cannot specify a dies induciae other than the one that is set out in the rules. He proceeded to argue, that, the court a quo compounded its error of adjudicating over an invalid application by proceeding to grant condonation where such had not been applied for.

On the merits of the applications that were before the court a quo, he further submitted that section 46(7) of the Electoral Act, which the court a quo relied on, was not properly engaged. He also submitted, that, the decision of the court a quo was wrong and contrary to the evidence adduced. To illustrate his point, counsel for the first to sixth appellants in SCB59/23 mentioned the case of Zvikwete Innocent Mbano who was also a respondent in the same matter but treated differently by the court a quo despite his circumstances being identical to those of the appellants.

He submitted, that, his clients had filed their papers before 4pm.

In any event, the thirteenth respondent (nominations officer), had, before 4pm, requested for all prospective candidates queuing outside awaiting their turn to file nomination papers, to hand in their papers through the police officer attached to the Nominations Court.

By so doing, the thirteenth respondent enabled everyone in the queue outside the small courtroom to submit their papers within the prescribed time.

He further submitted, that, the thirteenth respondent acted in terms of section 24(1) of the Interpretation Act [Chapter 1:01].

He also submitted, that, the appellants evidence established that they had lodged their papers before 4pm. He further submitted that there was no evidence that his clients papers were collected through the police officer. He thus argued that these facts were at variance with the conclusion of the court a quo.

In respect of Annexure “B” counsel contended, that, the times set out in that document were the times of inputting data as opposed to the time for filing nomination papers with the thirteenth respondent.

Finally, counsel argued that the applications were based on hearsay evidence from social media as deposed to by the respondents. This disregarded the fact, that, the appellants papers were presented in open court as required by section 46 of the Electoral Act.

He, therefore, prayed that the appeal be allowed with costs.

Counsel for the seventh to twelfth respondents submitted, that, there were no valid applications filed by the respondents before the court a quo. He associated himself with submissions made by counsel for the first to sixth appellants in SCB59/23. He further submitted, that, the respondents cases were based on hearsay evidence, which issue was not resolved by the court a quo. Counsel submitted that the conclusion reached by the court a quo was indefensible.

He prayed that the appeal be allowed with costs.

Counsel for the first to fourth appellants in SCB61/23 associated himself with submissions made by counsel for the first to sixth appellants in SCB59/23 and counsel for the seventh to twelfth respondents. He, however, further pointed out that the court a quo erroneously took all the respondents who were before it to be Citizens Coalition for Change party (CCC) sponsored candidates when this was not correct as some of the respondents were affiliated to different political parties and others were independent candidates. To demonstrate his point, he quoted the portion of the judgment a quo which mentioned that if one read one affidavit, he would have read all.

In respect of one of his clients, Adelaide Mhlanga, counsel for the first to fourth appellants in SCB61/23 submitted that she averred that she was in the court at all material times. To counsel, there was no evidence that the papers were collected after 4pm from persons who were outside.

In his submissions, counsel for the first to fourth appellants in SCB61/23 intimated that the court a quo took a casual approach to the evidence of the appellants and that of the nominations officer and the Zimbabwe Electoral Commission (ZEC). He stated that the court a quo regarded the appellants averments as merely bald denials. The court a quo was also accused of making sweeping statements against the electoral authority. For instance, it is said to have referred to the majority of the respondents, but, without specifying who they are.

He prayed for the appeal in SCB61/23 to be allowed with costs.

Counsel for the sixteenth appellant in SCB59/23 and the appellants in SCB62/23 submitted, that, the court a quo had no jurisdiction to deal with the matter because the Electoral Court exercises the general jurisdiction of the High Court in any matter before it. In addition, counsel moved the Court to depart from Kambarami v 1893 Mthwakazi Restoration Movement Trust and Others SC66–21…, as, in his view, it conflicted with section 171(1) of the Constitution and section 161 of the Electoral Act. He associated himself with submissions made by counsel for the appellants who addressed the Court before him.

He further submitted, that, the matter was disposable on the one question of whether or not the nomination papers were received by 4pm.

He finally submitted, that, section 46 of the Electoral Act simply requires papers to be received by a nomination officer, and, it does not prohibit any person from delivering the forms. Thus, to the extent that section 46(7) of the Electoral Act did not prohibit a police officer assigned by the nominations officer from receiving nomination papers from any person before 4pm, the conduct cannot be said to be illegal as it is not forbidden by statute.

Counsel for the sixteenth appellant in SCB59/23 and the appellants in SCB62/23, therefore, prayed that the appeal be allowed with costs.

Counsel for the first to the twelfth respondents submitted, that, the seventh ground of appeal resolved the appeal. He submitted that the court a quo accepted the evidence of the thirteenth to the fifteenth respondents. He however said that what the court a quo rejected were the opinions of the Electoral Commission.

Counsel further submitted, that, in terms of section 46(5) and 46(6) of the Electoral Act, the Nomination Court is a public and open court that closes at 4pm, after which time it cannot accept nomination papers from new prospective candidates.

He further submitted, that, the evidence from the Commission was that the appellants were not in court. He also referred to the evidence of Tabeth Mwonzora, a secretary at the Nomination Court, to the effect, that, a police detail collected the papers. Relying on the definition of a nomination officer, counsel also submitted that the definition does not include a police officer. Thus, by directing the police detail to collect the nomination papers, the nomination officer acted unlawfully and his conduct was null and void. He referred the court to Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S) in support of this proposition.

He submitted, that, the circumstances of this case warranted a declaration on the correct position of the law.

In respect of Annexure “B” counsel for the first to the twelfth respondents contended, that, it was a public document which is acceptable in terms of section 12 of the Civil Evidence Act [Chapter 8:01]. He further submitted that the document is a submission form from Bulawayo Province which sets out the times when the nomination papers were accepted. He stressed the point, that, all the appellants nominations were captured as having been accepted after 4pm.

On the question of jurisdiction, counsel for the first to the twelfth respondents submitted that Kambarami v 1893 Mthwakazi Restoration Movement Trust and Others SC66–21 was good law, having been decided after the adoption of the 2013 Constitution and the enactment of the Judicial Laws Amendment (Ease of Doing Business) Act 2017. He therefore submitted, that, the High Court has jurisdiction to grant a declaratur.

Regarding the issue of the validity of the applications a quo, counsel submitted that the High Court issued an order truncating the dies induciae. He further contended, that, Rule 59(6) of the High Court Rules 2021 does not specify that urgent applications must be filed with a modified dies induciae only after the High Court has granted such leave.

In respect of the first ground of appeal, he submitted that it was a bad ground at law as it challenged a decision on how the court should have conducted its proceedings. He argued that such a decision was not appealable.

In respect of the fifth ground of appeal, counsel for the first to the twelfth respondents submitted that the first to the twelfth respondents had locus standi. He relied on the decision in Stevenson v Minister of Local Government & Others 2002 (1) ZLR 498 (S).

On the issue of non-joinder of Citizens Coalition for Change party (CCC), counsel averred that it was not an interested party.

He prayed for the dismissal of the appeals with costs.

Counsel for the thirteenth, fourteenth, and fifteenth respondents submitted that his clients would abide by the decision of this Court. Accordingly, he did not make any submissions.

ISSUES FOR DETERMINATION

The issues which commend themselves for determination by this Court are as follows:

(i) Whether or not the court a quo erred and misdirected itself in dismissing the appellants preliminary points.

(ii) Whether or not the court a quo was correct in its findings, that, the appellants nomination papers were submitted to the nomination officer after 4pm.

THE APPLICABLE LAW

The appeals are all hinged on the law relating to the procedure for the nomination of candidates for election as Members of Parliament. Sections 46(6), (7) and (8) of the Electoral Act are central to the resolution of these appeals. They read:

“(6) The nomination officer, shall, in open court —

(a) Announce whether any candidate has lodged his or her nomination paper before the sitting of the court, and, if so, the name of every such candidate; and

(b) Receive any further nominations for election as constituency member of the National Assembly for the constituency for which he or she is the nomination officer.

(7) No nomination paper shall be received by the nomination officer in terms of subsection (6) after four o'clock in the afternoon of nomination day, or, where there is more than one nomination day for the election concerned, the last such nomination day: Provided, that, if at that time a candidate or his or her chief election agent is present in the court and ready to submit a nomination paper in respect of the candidate, the nomination officer shall give him or her an opportunity to do so.

(8) The nomination officer shall examine every nomination paper lodged with him or her which has not been previously examined by him or her in order to ascertain whether it is in order, and shall give any candidate, or his or her election agent, an opportunity to rectify any defect not previously rectified and may adjourn the sitting of the court for that purpose from time to time: Provided that the sitting shall not be adjourned to any other day that is not a nomination day.”

The Interpretation Act [Chapter 1:01], section 24(1) and (2), are also relevant and provide as follows:

“POWERS AND APPOINTMENTS

24. Statutory powers and duties generally

(1) Where an enactment confers a power, jurisdiction, or right, or imposes a duty; the power, jurisdiction or right may be exercised and the duty shall be performed from time to time as occasion requires.

(2) Where an enactment empowers any person or authority to do any act or thing, all such powers shall be deemed to be also given as are reasonably necessary to enable that person or authority to do that act or thing or are incidental to the doing thereof.”

In our view, the appeals can be resolved by a correct interpretation of section 46(6), (7) and (8) of the Electoral Act. The interpretation of section 24(1) and (2) of the Interpretation Act will also be considered in resolving the appeals.

Section 46(6)(a) of the Electoral Act permits a prospective candidate to lodge his or her nomination papers before the nomination day. On nomination day, the nomination officer must announce, in open court, the names of all candidates who lodged their nomination papers prior to the nomination day.

Section 46(6)(b) of the Electoral Act provides for the nomination officer's receipt of nomination papers on the nomination day.

Section 46(7) of the Electoral Act forbids a nomination officer from receiving nomination papers after 4pm on nomination day except for those candidates, or their election agents, who will be present in the courtroom and ready to submit their nomination papers by 4pm. Therefore, candidates, or their election agents, who will be in the courtroom will not be affected by the cut-off time of 4pm.

Section 46(8) of the Electoral Act mandates the nomination officer to attend to and examine all nomination papers lodged with him or her between 10am and 4pm, and give opportunities to candidates, or their agents, to rectify anomalies by adjourning the court to enable them to do so by not later than the end of the nomination day.

Section 24(1) of the Interpretation Act provides, that, where a statute gives a public officer power to perform a duty, such power includes the power to organise and perform as occasion requires.

Section 24(2) of the Interpretation Act gives a public officer powers to take reasonable steps that enable him or her to accomplish what the law mandates.

The principles of interpretation of statutes have been discussed by this Court in a number of cases. In the case of Endeavour Foundation and Anor v Commissioner of Taxes 1995 ZLR 339 (S)…, this Court held that:

“The general principle of interpretation is that the ordinary, plain, literal meaning of the word or expression, that is, as popularly understood, is to be adopted, unless that meaning is at variance with the intention of the Legislature as shown by the context, or such other indicia, as the court is justified in taking into account, or creates an anomaly, or otherwise produces an irrational result.”

See also Zambezi Gas Zimbabwe (Pvt) Ltd v N.R. Barber (Pvt) Ltd & Anor SC03–20…,.

According to case law on rules of interpretation, the use of the word “shall” in a statute denotes a mandatory intention by the legislature for the provision to be complied with. In the case of Shumba and Anor v ZEC and Anor 2008 (2) ZLR 65 (S)…, this Court held:

“It is the generally accepted rule of interpretation, that, the use of peremptory words such as 'shall' as opposed to 'may' is indicative of the legislature's intention to make the provision peremptory. The use of the word 'may' as opposed to 'shall' is construed as indicative of the legislature's intention to make a provision directory. In some instances, the legislature explicitly provides, that, failure to comply with a statutory provision is fatal. In other instances, the legislature specifically provides that failure to comply is not fatal. In both of the above instances, no difficulty arises. The difficulty usually arises where the legislature has made no specific indication as to whether failure to comply is fatal or not.”

Given that it is generally accepted that the use of the word “shall” in any enactment is understood as being indicative of the legislature's intention of making the provision peremptory, it becomes necessary to consider some hallowed principles of interpretation for determining the intended effect of non-compliance with a peremptory statute. There are principles that the courts resort to in order to determine whether or not the legislature intended non-compliance with a provision to be fatal.

Thus, in Shumba and Anor v ZEC and Anor 2008 (2) ZLR 65 (S)…, it was stated that:

“Francis Bennion, Statutory Interpretation submits that the courts have to determine the intention of the legislalture using certain principles of interpretation as guidelines. He had this to say at pp21-22:

'Where a duty arises under a statute, the court charged with the task of enforcing the statute needs to decide what consequence Parliament intended should follow from breach of the duty.

This is an area where legislative drafting has been markedly deficient. Draftsmen find it easy to use the language of command. They say that a thing 'shall' be done. Too often they fail to consider the consequence when it is not done. What is not thought of by the draftsman is not expressed in the statute. Yet, the courts are forced to reach a decision.

It would be draconian to hold, that, in every case, failure to comply with the relevant duty invalidates the thing done. So, the courts answer has been to devise a distinction between mandatory and directory duties. Terms used instead of 'mandatory' include 'absolute' 'obligatory' 'imperative' and 'strict'. In place of 'directory' the term 'permissive' is sometimes used.

Use of the term 'directory' in the sense of permissive has been justly criticised: see Craies, Statute Law, 7ed 1971, p61 n74.) However, it is now firmly rooted.

Where the relevant duty is mandatory, failure to comply with it invalidates the thing done. Where it is merely directory, the thing done will be unaffected (though there may be some sanction for disobedience imposed on the person bound). (As to sanctions for breach of statutory duty see section 13 of this Code (criminal sanctions) and section 14 (civil sanctions)).'

Thereafter, the learned author sets out some guiding principles for the determination of whether failure to comply with a statutory provision is fatal or a mere irregularity. One of those guiding principles is the possible consequences of a particular interpretation. If interpreting non-compliance with a statutory provision leads to consequences totally disproportionate to the mischief intended to be remedied, the presumption is that Parliament did not intend such a consequence, and, therefore, the provision is directory.'”

Similarly, in the case of Sibanda & Anor v Ncube & Ors; Khumalo & Anor v Mudimba & Ors SC158–20…, PATEL JA…, held that:

“The broad test for ascertaining the true nature of a statutory duty was enunciated more than a century ago in the case of Howard v Bodington (1877) 2 PD 203, at 211:

'…, in each case, you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and, upon a review of the case on that aspect, decide whether the enactment is what is called imperative or only directory….,.'

A further aspect that may be relevant is the need to distinguish between those persons who are bound to perform the statutory duty and those who might be affected by its performance or non-performance: see Bennion, op cit, at p21.

In this context, the extent to which the former are in a position to exercise control over the latter may become a crucial consideration. This point was aptly elucidated in Montreal Street Railway Company v Normandin [1917] AC 170, at 174:

'When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in respect of this duty would work serious inconvenience or injustice to persons who have no control over those entrusted with the duty, and, at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.'”

These principles must be understood within the context of the law relating to electoral matters in general.

In Hove v Gumbo (Mberengwa West Election Petition Appeal) 2005 ZLR 85 (S) MALABA JA…, summarised some of the principles. At pp92B–E, it was held that:

“The law governing the manner and grounds on which an election may be set aside must be found in statute and nowhere else. In Nath v Singh & Ors [1954] SCR 892 at 895, MAHAJAN CJ said:

'The general rule is well settled, that, the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power.

It is also well settled, that, it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law.'

About twenty years later, the same principle was reiterated by CHANDRACHUD CJ in Sahu's case supra, where at p39 he said:

'The rights arising out of elections, including the right to contest or challenge an election, are not common law rights. They are creatures of the statutes which create, confer, or limit those rights. Therefore, for deciding the assertion whether an election can be set aside, on any alleged ground, the courts have to consult the provisions of law governing the particular election. They have to function within the framework of that law and cannot travel beyond it.'”…,.

Although this relates to the setting aside of an election, it applies with equal force to setting aside nominations of candidates for the National Assembly constituencies as in the present case.

APPLICATION OF THE LAW TO THE FACTS

On the merits, the Court makes the following observations:

It is common cause, that, on the nomination day, the court commenced at 10am. It is also not in dispute that the designated Nomination Court was a small courtroom and the nomination officer could only allow 12 to 15 people at a time. The rest of the candidates and/or agents queued outside the courtroom. At 3:55pm, the nomination officer announced that all prospective candidates were to hand over their nomination papers to the police officer attached to the Nomination Court.

The police officer complied and directed, from the end of the queue, that, nomination papers be handed to the police officer at the door who then handed over the nomination papers to the nomination officer before 4pm.

A reading of section 24(1) and (2) of the Interpretation Act shows, that, the nomination officer, as a public officer, has the power to employ such appropriate administrative tools to accomplish his duty: see Shumba and Anor v ZEC and Anor 2008 (2) ZLR 65 (S).

He accepted lodgement of nomination papers within the prescribed time limits in compliance with section 46(6) as read with section 46(7) and 46(8) of the Electoral Act.

Evidence from the thirteenth to fifteenth respondents confirms, that, the nominations lodged on the nomination day were lodged before 4pm and that Annexure “B” was not an official document indicating the times of lodgement of nomination papers in the Nomination Court.

It appears, that, the court a quo turned a blind eye to the responsible authority's evidence and relied on the first to twelfth respondents evidence, which was heavily borrowed from social media, and, that is hearsay.

A close examination of Annexure “B” reveals that it is a submission form, without specification as regards what was submitted and to whom. Further, the form only starts recording at 1300 hours and the recordings are randomly captured at different times, some of which were prior to 1300 hours. It was therefore speculative for the court a quo to ascribe the unsystematically recorded form as proof of the times of lodgement of nomination papers.

The court a quo thus erred in dismissing the Electoral Commission's evidence as regards the use of Annexure “B” when it relied on its own interpretation of the document as opposed to the evidence presented by the nomination officer and all the other officials who deposed to supporting affidavits.

It is important to note, that, the nomination officer deposed the opposing affidavit on behalf of the Zimbabwe Electoral Commission (ZEC) and its Chairperson who had authorised him to do so. His deposition must therefore be understood to be the evidence of ZEC and its Chairperson…,.

In our view, the court a quo should have exercised caution in dismissing the Zimbabwe Electoral Commission's explanation of the form because one cannot lightly dismiss the responsible authority's explanation of the purpose for which the form is used in the absence of cogent evidence to the contrary. It is up to an Administrative Authority to devise administrative tools to function efficiently.

In any event, Annexure “B” is not clear.

It does not, on the face of it, reflect that it is proof of the time of lodgement of nomination papers with the nomination officer. It is just headed as a submission form with mixed time slots.

The sweeping remarks by the court a quo to the effect, that, the thirteenth to fifteenth respondents came up with exculpatory explanations upon realizing that they were on trial were unwarranted and can be characterised as unfortunate considering the unreliable hearsay evidence the respondents relied on.

Even if we were to consider the facts of the case, as deposed to by the first to twelfth respondents, that, some of the appellants came to the Nomination Court in time, and, when their papers were found not to be in order, they were requested to go and correct them, they came back before 4pm.

The question of having failed to comply with the 4pm deadline would not arise.

Further section 46(8) of the Electoral Act allows a person who is required to correct his or her papers to do so during adjournments taken within the nomination day.

In the circumstances, even if for some of the appellants had to correct their nomination papers after 4pm, they still lodged them with the nomination officer in compliance with section 46(8) of the relevant Act.

We are alive to the fact, that, an Appellate Court should be loathe to interfere with factual findings of the trier of fact: see Mangwende v Zimbabwe Newspapers SC71-20. However, in circumstances where the decision of the court a quo is not anchored on evidence on record and is based on a wrong principle, interference is warranted.

In casu, whilst the court a quo acknowledged that there was a challenge as regards what exactly happened at the Nomination Court, on the nomination day, it nevertheless proceeded to declare the nomination of the appellants a nullity.

The challenge with regard to what occurred at the Nomination Court emanated from the fact, that, the first to twelfth respondents were not in attendance. They had no first-hand information. They relied on what they said was awash on social media.

Further, whilst being alive to the relevant provisions of the Electoral Act, section 46(6), (7) and (8), and acknowledging that candidates and/or agents could lodge nomination papers with the nomination officer, who was mandated by the law to allow those with anomalies to rectify the same, it made a finding against the appellants.

At the same time, without any justification for differential treatment, the court a quo allowed the nomination of one Zvikwete Innocent Mbano's nomination to stand - even though he admitted to having corrected and submitted his corrected nomination papers after 4pm.

SC12-14 : ANTHONY MAKINTOSH vs CHAIRMAN, ENVIRONMENTAL MANAGEMENT COMMITTEE OF CITY OF HARARE and CITY OF HARARE
Ruled By: ZIYAMBI JA, GWAUNZA JA and GOWORA JA

This is an appeal against a judgment of the Administrative Court. The appellant, an accountant by profession, carries on business as C J Accounting and Secretarial Services (Pvt) Limited.On 20 December 2010, the appellant applied to the respondents for a permit in terms of section 26 of the ...

This is an appeal against a judgment of the Administrative Court. The appellant, an accountant by profession, carries on business as C & J Accounting and Secretarial Services (Pvt) Limited.

On 20 December 2010, the appellant applied to the respondents for a permit in terms of section 26 of the Regional Town and Country Planning Act [Chapter 29:12] (“the Act”) to alter the character of the use of Stand 76 Groombridge Township 2 of Lot 39A Mount Pleasant otherwise known as 162 The Chase, Mt Pleasant, Harare from residential to business premises, namely, a motor cycle showroom and offices.

It is common cause that the appellant was, at the time of the application, already operating a motor cycle showroom as well as accounting offices from the said premises.

On 1 June 2012, the City of Harare wrote to the appellant refusing the application for a permit on four grounds. The letter reads as follows:

“Dear Sir,

APPLICATION IN TERMS OF SECTION 26(3) OF THE REGIONAL TOWN AND COUNTRY PLANNING ACT, REVISED EDITION (1996), CHAPTER 29:12 PROPOSED CHANGE OF USE FROM RESIDENTIAL TO OFFICES AND MOTOR CYCLE SHOWROOM ON STAND 76 GROOMBRIDGE TOWNSHIP 2 OF LOT 39A MT PLEASANT (162 THE CHASE) HARARE

You are hereby notified that in terms of Section 26(3) of the Regional Town and Country Planning Act Chapter 29:12 Revised Edition (1996), the City Council of Harare's Environmental Management Committee, as a Local Planning Authority, on Monday, 30 April 2012 (Minute Item 15) refused to grant a permit for the use of Stand 76 Groombridge Township 2 of Lot 39A Mt Pleasant (162 The Chase), For Offices And Motor Cycle Showroom purposes, because of the following reasons:

(a) There was no proven local area NEED for the proposed offices as they are of no benefit to the community. The motorcycle showroom is prohibited in terms of the operative local plan.

(b) Mt Pleasant is losing its residential character due to illegal commercialization of the properties. This application is one such illegal use. If all these changes are permitted, it will soon cease to be a low density residential area but a commercial one. The application is therefore not supported.

(c) Already, we have the Mt Pleasant Business Park to cater for office needs in the area and retain the residential aspect in the remainder of the neighbourhood.

(d) The City of Harare faces an acute shortage of housing. Any one of the existing housing units, should, as a result, only be converted to any other use where it is absolutely necessary.

Notice of Appeal

(i) Attention is drawn to the provisions of section 38 of the Regional Town and Country Planning Act, Chapter 29:12 Revised Edition (1996) under which any person aggrieved by this decision may appeal to the Administrative Court within one month of this permit or such longer period as the President of the Administrative Court may, in writing, authorize, the relevant procedure is set out in the Rules of the Administrative Court.

Yours faithfully

DIRECTOR OF URBAN PLANNING SERVICES”

Aggrieved by the decision, the appellant appealed to the Administrative Court in terms of section 38 of the Regional, Town, and Country Planning Act.

The appeal was unsuccessful. The court upheld the decision of the respondents on all grounds.

Two grounds of appeal were advanced in the appeal before this Court. They are:

“1. The court a quo erred in law –

(a) In finding, that, there is no local area need for offices for accounting and secretarial services, yet, Respondents granted permits for commercial offices of related businesses in the same neighbourhood;

(b) In failing to separate the permit application for accounting and secretarial offices from the motorcycle showroom thereby refusing to grant the permit subject to the conditions imposed in respect of offices; and

2. In any event, the court a quo misdirected itself –

(a) In failing to take cognizance of the fact that Respondents have already granted permits with commercial rights to other businesses in the same neighbourhood thereby discriminating against the Appellant;

(b) In finding that an acute shortage of residential accommodation or property in Harare is a basis upon which a permit should be refused.

(c) In failing to differentiate Appellant's private residential property from the public duty to provide residential accommodation which the Respondents have in providing residential accommodation to Harare residents.”

It was contended on behalf of the respondents, that, a decision by the Administrative Court, in terms of section 38 of the Regional, Town and Country Planning Act involves the exercise of a discretion, and that this Court, as an Appeal Court, could only interfere with the exercise of a discretion by a lower court in limited circumstances, none of which were present in this case.

Section 38 of the Regional Town and Country Planning Act [Chapter 29:12] provides, in part, as follows:

“38. Appeals

(1) Any person —

(a) Who is aggrieved by any decision made, or deemed to have been made, by a local planning authority, in connection with an application for -

(i) A permit or preliminary planning permission; or

(ii)…,.

(iii)…,.;
may, within one month from the notification of such decision; or

(b)…,.

(c)…,.
or such longer period as the President of the Administrative Court may in writing authorize, appeal to the Administrative Court in such manner as may be prescribed in rules, and, the Administrative Court may make such order as it deems fit.”…,.

A wide discretion is conferred on the Administrative Court by this provision.

DISCRETION

An Appeal Court will only interfere with a decision which involves the exercise of discretion by a lower court in very limited circumstances. These were set out by this Court in Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S)…, where the Court said:

“The attack upon the determination of the learned judge, that, there were no special circumstances for preferring the second purchaser above the first, one which clearly involved the exercise of a judicial discretion, may only be interfered with on limited grounds: see Farmers Co-operative Society (Reg.) v Berry 1912 AD 343 at 350. These grounds are firmly entrenched.

It is not enough that the Appellate Court considers, that, if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion.

If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account relevant some consideration, then, its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution, provided always has the materials for so doing. In short, this court is not imbued with the same broad discretion as was enjoyed by the trial court.”

Contrary to the appellant's allegation that the learned President misdirected himself, it would appear to me that the court a quo was alive to the principles to be applied in a matter such as this, and went on to apply those principles.

For example, it was guided by the judgment in Doves Morgan (Pvt) Ltd v The City of Salisbury 1973 (1) RLR 50 which set out the applicable principles to be the following:

“…, the special consent procedure is inserted in town planning schemes to allow an obtrusive activity to be carried on in an area, if the applicant can establish that there is a need for the use in that area, in the sense that, the members of the public who are in that area would suffer serious disadvantage if such activity is not allowed to be carried out in that area.”

The learned President took into account, that, Stand 76 Groombridge Township 2 of Lot 39A Mount Pleasant is located in an area set aside primarily for residential houses; that motor cycle showrooms are prohibited in that area; and that use of buildings in that area, for other purposes, may be permitted with the special consent of the local planning authority - the respondents.

He found that “conversion of the appellant's residential property into a motor cycle showroom and offices would constitute disharmonious development in the area”. Such a development, the President found, would have disrupted the harmonious and co-ordinated development of properties in that area as there would be more noise and motor cycle traffic than would be the case in a quiet residential area.

He took into account, that, the respondents have an obligation, in terms of the Regional, Town and Country Planning Act, to formulate policies for the co-ordinated and harmonious development of the use of land in its area of jurisdiction, and, therefore, concern themselves with the interests of the members of the public in the area as opposed to individual interests.

In its submissions, the appellant stated that no less than seven stands along The Chase in Mount Pleasant have been converted from residential Stands to commercial uses.

The response by the respondents was that most of these businesses were operating illegally, and that, proceedings for redressing that situation were in progress.

As observed by the learned President, the fact that other residents had illegally changed the use of their residences to commercial use was not a factor which the appellant could rely on in advancing the justice of his case.

The court found, that, not only had no need been proved, but, that, there was adequate office space provided at Mount Pleasant and Arundel Business Parks which were designed for that very purpose.

In the final analysis, this Court is unable to interfere with the judgment of the learned President unless there has been a misdirection, as set out above in Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S).

I find no such misdirection in the judgment of the learned President. He took into account all the relevant factors and was alive to the law applicable in such cases.

It was for the above reasons, that, after hearing submissions from counsel, we dismissed the appeal with costs and indicated that reasons for our decision would follow.

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

Appealed
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

SC55-15 : ZIMBABWE BANKING CORPORATION LIMITED vs SAIDI MBALAKA
Ruled By: GWAUNZA JA, GOWORA JA and MAVANGIRA AJA

Appealed
CC15-19 : THOUSAND SADZIWANI vs NATPAK (PRIVATE) LIMITED and THE ATTORNEY-GENERAL and NATIONAL FOODS LIMITED
Ruled By: MALABA CJ and GOWORA JCC and HLATSHWAYO JCC

CC01-13 : JEALOUSY MAWARIRE vs ROBERT MUGABE N.O. and MORGAN TSVANGIRAI N.O. and ARTHUR MUTAMBARA N.O. and WELSHMAN NCUBE and THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA, CHIWESHE AJA and GUVAVA AJA

View Appeal
CC03-23 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, CLIMATE AND RURAL SETTLEMENT and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

View Appeal
CC03-23 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, CLIMATE AND RURAL SETTLEMENT and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE
Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD
Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

CC06-16 : SAMUEL NKOMO vs MINISTER OF LOCAL GOVERNMENT, RURAL & URBAN DEVELOPMENT and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and GOVERNMENT OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

CC13-20 : THABANI MPOFU vs ZIMBABWE ENERGY REGULATORY AUTHORITY and MINISTER OF ENERGY AND POWER DEVELOPMENT and GREEN FUELS (PVT) LTD
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWEJCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA JCC

SSC43-23 : TAPFUMANEYI ALIFANARI vs THE STATE
Ruled By: GUVAVA JA, UCHENA JA and KUDYA JA

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

SC12-14 : ANTHONY MAKINTOSH vs CHAIRMAN, ENVIRONMENTAL MANAGEMENT COMMITTEE OF CITY OF HARARE and CITY OF HARARE
Ruled By: ZIYAMBI JA, GWAUNZA JA and GOWORA JA

Categories

Law Portal Zimbabwe

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

Appealed 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

SC55-15 : ZIMBABWE BANKING CORPORATION LIMITED vs SAIDI MBALAKA Ruled By: GWAUNZA JA, GOWORA JA and MAVANGIRA AJA

Appealed CC15-19 : THOUSAND SADZIWANI vs NATPAK (PRIVATE) LIMITED and THE ATTORNEY-GENERAL and NATIONAL FOODS LIMITED Ruled By: MALABA CJ and GOWORA JCC and HLATSHWAYO JCC

CC01-13 : JEALOUSY MAWARIRE vs ROBERT MUGABE N.O. and MORGAN TSVANGIRAI N.O. and ARTHUR MUTAMBARA N.O. and WELSHMAN NCUBE and THE ATTORNEY-GENERAL Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA, CHIWESHE AJA and GUVAVA AJA

View Appeal CC03-23 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, CLIMATE AND RURAL SETTLEMENT and OTHERS Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

View Appeal CC03-23 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, CLIMATE AND RURAL SETTLEMENT and OTHERS Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

CC06-16 : SAMUEL NKOMO vs MINISTER OF LOCAL GOVERNMENT, RURAL & URBAN DEVELOPMENT and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and GOVERNMENT OF ZIMBABWE Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

CC13-20 : THABANI MPOFU vs ZIMBABWE ENERGY REGULATORY AUTHORITY and MINISTER OF ENERGY AND POWER DEVELOPMENT and GREEN FUELS (PVT) LTD Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWEJCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA JCC

SSC43-23 : TAPFUMANEYI ALIFANARI vs THE STATE Ruled By: GUVAVA JA, UCHENA JA and KUDYA JA

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

SC12-14 : ANTHONY MAKINTOSH vs CHAIRMAN, ENVIRONMENTAL MANAGEMENT COMMITTEE OF CITY OF HARARE and CITY OF HARARE Ruled By: ZIYAMBI JA, GWAUNZA JA and GOWORA JA

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Zimbabwe

Appealed
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

SC55-15 : ZIMBABWE BANKING CORPORATION LIMITED vs SAIDI MBALAKA
Ruled By: GWAUNZA JA, GOWORA JA and MAVANGIRA AJA

Appealed
CC15-19 : THOUSAND SADZIWANI vs NATPAK (PRIVATE) LIMITED and THE ATTORNEY-GENERAL and NATIONAL FOODS LIMITED
Ruled By: MALABA CJ and GOWORA JCC and HLATSHWAYO JCC

CC01-13 : JEALOUSY MAWARIRE vs ROBERT MUGABE N.O. and MORGAN TSVANGIRAI N.O. and ARTHUR MUTAMBARA N.O. and WELSHMAN NCUBE and THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA, CHIWESHE AJA and GUVAVA AJA

View Appeal
CC03-23 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, CLIMATE AND RURAL SETTLEMENT and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

View Appeal
CC03-23 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, CLIMATE AND RURAL SETTLEMENT and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE
Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD
Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

CC06-16 : SAMUEL NKOMO vs MINISTER OF LOCAL GOVERNMENT, RURAL & URBAN DEVELOPMENT and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and GOVERNMENT OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

CC13-20 : THABANI MPOFU vs ZIMBABWE ENERGY REGULATORY AUTHORITY and MINISTER OF ENERGY AND POWER DEVELOPMENT and GREEN FUELS (PVT) LTD
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWEJCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA JCC

SSC43-23 : TAPFUMANEYI ALIFANARI vs THE STATE
Ruled By: GUVAVA JA, UCHENA JA and KUDYA JA

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

SC12-14 : ANTHONY MAKINTOSH vs CHAIRMAN, ENVIRONMENTAL MANAGEMENT COMMITTEE OF CITY OF HARARE and CITY OF HARARE
Ruled By: ZIYAMBI JA, GWAUNZA JA and GOWORA JA