This
is a court application brought in terms of section 167(2)(d) of the
Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the
Constitution”). The section provides that only the Constitutional
Court (“the Court”) may determine whether Parliament or the
President has failed to fulfil a constitutional obligation.
The
applicants seek an order declaring the first respondent to have
failed ...
This
is a court application brought in terms of section 167(2)(d) of the
Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the
Constitution”). The section provides that only the Constitutional
Court (“the Court”) may determine whether Parliament or the
President has failed to fulfil a constitutional obligation.
The
applicants seek an order declaring the first respondent to have
failed to fulfil its constitutional obligation to protect the tenure
of seat of a Member of Parliament, allegedly as required by sections
119(1) and 129(1)(k) of the Constitution.
Section
119(1) of the Constitution provides that Parliament must protect the
Constitution and promote democratic governance in Zimbabwe. Section
129(1)(k) of the Constitution provides as follows:
“129
Tenure of seat of Member of Parliament
(1)
The seat of a Member of Parliament becomes vacant -
(a)
– (j)…,.
(k)
If the Member has ceased to belong to the political party of which he
or she was a member when elected to Parliament and the political
party concerned, by written notice to the Speaker or the President of
the Senate, as the case may be, has declared that the Member has
ceased to belong to it;…,.”
The
applicants seek a further declaratory order to the effect that the
first applicant is still a Member of Parliament. They also seek an
order declaring the letter written by the third respondent to invoke
the operation of the provisions of section 129(1)(k) of the
Constitution to be invalid.
The
Court holds that the question of whether or not Parliament failed to
fulfil its constitutional obligation with regard to the circumstances
in which the seat occupied by the first applicant became vacant has
been rendered moot by the occurrence of events subsequent to the
making of the court application. The matter no longer presents a live
dispute between the parties requiring the Constitutional
Court
to exercise its jurisdiction to hear and determine it in accordance
with the principle of justiciability.
It
is common cause that in terms of section 143(1) of the Constitution
the life of the Parliament concerning the vacancy of the seat in
respect to which it is alleged it failed in its constitutional
obligation came to an end at midnight on 29 July 2018. That was the
day before the first polling day in the general election held on 30
July 2018. The seat of Parliament, the right of occupation of which
the first applicant sought to vindicate, became irrefutably vacant
and lost to her when Parliament, which had been elected for a
five-year term, stood dissolved in terms of section 143(1) of the
Constitution at midnight on 29 July 2018. The matter has thus been
overtaken by events.
A
declaratory order is, by its nature, a discretionary remedy. The
discretion to grant a declaratory order must be judiciously
exercised, taking into account the fact that the Court does not
decide matters which are purely academic or abstract. There are no
exceptional circumstances, the consideration of which could have
caused the Court to exercise its discretion, in the interests of
justice, to hear and determine the matter despite it being moot.
The
application must be dismissed with no order as to costs. The reasons
for the decision now follow.
FACTUAL
BACKGROUND
The
second applicant is a political party. The first applicant asserts
that in 2006 she was elected as the second applicant's Deputy
President at the latter's congress. She further averred that she
was re-elected to the same position at subsequent congresses,
including the one held in 2014. On the authority of the outcome of
the congress held in 2014, the first applicant claims the right to be
the President of the political party following the death, in February
2018, of Mr Morgan Tsvangirai, who was the President. The first
applicant claims the ascendancy to the office of the President of the
MDC-T, pending the holding of a congress to elect a new President in
terms of the political party's constitution.
It
is the first applicant's case that in the general election held on
30 July 2013 she was elected a Member of the National Assembly to
represent the Bulawayo Metropolitan Province on the second
applicant's ticket in terms of section 124(1)(b) of the
Constitution.
On
10 April 2018, the third respondent sent a written notice to the
second respondent. The written notice made the declaration that the
first applicant had ceased to be a member of the Movement for
Democratic Change-Tsvangirai (“the MDC-T”). The written notice
also declared that the first applicant had been relieved of the right
to represent the MDC-T in the National Assembly in terms of section
129(1)(k) of the Constitution. The written notice declared that the
second applicant's National Council had resolved to expel the first
applicant from the MDC-T. It was also said that the first applicant
had been informed of the decision expelling her from the political
party concerned on 23 March 2018.
Acting
on the written notice, the second respondent announced to Members of
the National Assembly, on 12 April 2018, that a Proportional
Representation vacancy had arisen in the Party list seat for the
Bulawayo Metropolitan Province.
Aggrieved
by the loss of her seat, the first applicant approached the
Constitutional Court alleging that the first respondent had failed to
fulfil a constitutional obligation to protect the tenure of the seat
of a Member. She averred that she was recalled from the political
party concerned illegally, hence the creation of a vacancy in her
seat was invalid.
The
first applicant averred that she wrote a letter to the second
respondent on 12 March 2018, notifying him that there were factional
conflicts in the MDC-T. On the strength of that letter, she contended
that the second respondent ought not to have acted on the basis of
the written notice sent to him by the third respondent. The first
applicant took the view that in acting on the basis of the written
notice the first respondent, represented by the second respondent,
acted irrationally, thereby failing to fulfil its constitutional
obligation.
It
was further contended by the first applicant that section 119(1), as
read with section 129(1)(k), of the Constitution imposes an
obligation on the second respondent not to announce a vacancy other
than that strictly occurring in terms of the Constitution. The first
applicant further averred that the aforesaid provisions impose a
further obligation on the first respondent to submit every dispute
that impacts on the tenure of the seat of a Member of Parliament to
the courts for determination before the provisions of section
129(1)(k) of the Constitution take effect.
The
contention was that section 129(1)(k) of the Constitution does not
have an automatic effect.
It
was further averred that once the first respondent is put on notice,
by any of its Members, about a potential dispute in a political party
to which a Member belongs, it has a constitutional obligation to
either put into motion a process akin to interpleader proceedings and
require a court of law to resolve the dispute or to refer the parties
to a court.
The
suggestion was that the procedure referred to was a requirement of
section 129(1)(k) of the Constitution.
The
first and second respondents, on the other hand, contended that the
first applicant's case did not establish a breach of the
Constitution. The contention was that the first respondent had no
constitutional obligation arising from the provisions of section
119(1), as read with section 129(1)(k), of the Constitution,
notwithstanding the interpretation of these provisions by the first
applicant aimed at laying the ground for approaching the
Constitutional Court in terms of section 167(2)(d) of the
Constitution. The argument was that Parliament would have discharged
its obligation of protecting the Constitution and promoting
democratic governance when it acted in terms of section 129(1)(k) of
the Constitution. The section is a self-contained provision laying
down a specific procedure for creating a vacancy in a seat of
Parliament.
The
contention by the respondents was that the attempt to invoke the
jurisdiction of the Constitutional Court, by reference to matters
provided for under section 167(2)(a) of the Constitution, was a
deliberate strategy designed to avoid the consequences of the failure
by the first applicant to use the appropriate remedy for the
protection of her rights of membership of the political party
concerned. A challenge to the legality of the decision to expel the
first applicant from the MDC-T in the courts and its result would
have been the only remedy by which the operation of the provisions of
section 129(1)(k) of the Constitution, on the first applicant's
seat, could have been averted or reversed during the life of
Parliament. The argument was that there was no basis for approaching
the Constitutional Court in terms of section 167(2)(d) of the
Constitution because the facts which constituted the cause of action
did not reveal breach by Parliament of its constitutional obligation
within the meaning of section 119(1), as read with section 129(1)(k)
of the Constitution.
The
first and second respondents further argued that the first applicant
ought to have approached the courts for relief when she became aware
of her expulsion rather than argue that it was the second respondent
who had the duty to refer the dispute to the courts.
According
to the respondents, the correct interpretation of section 129(1)(k)
of the Constitution is that a seat of Parliament becomes vacant by
operation of law once the procedures required by section 129(1)(k)
are complied with and the things required to be done are done in the
manner prescribed and brought to the notice of the official
designated to receive the written notice. They contended that the
obligation that the first applicant alleged Parliament breached is
alien to the provisions of section 119(1), as read with section
129(1)(k) of the Constitution.
The
third respondent argued that the Court cannot read into section
129(1)(k) of the Constitution obligations which do not flow from it
and find that the first respondent failed to fulfil them.
Pursuant
to the 30 July 2018 general election, new Members of Parliament have
been elected. In view of the relief sought by the first applicant,
the determination of the matter turns on the question of whether or
not the controversy is still live. If the dispute is no longer live,
the question is whether the applicants have made out a case for the
Constitutional Court to exercise its discretion to hear a moot case.
WHETHER
OR NOT THE MATTER IS MOOT
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. It is an established
principle of law that not every constitutional point raised by a
litigant can be heard by the courts. The constitutional limits on the
exercise of judicial power, combined with notions of the limited
nature of judicial power, have evolved into a broad doctrine known as
“justiciability”. (See STERN, GRESSMAN & SHAPIRO, Supreme
Court Practice 6ed, The Bureau of National Affairs, Inc, Washington,
1950)…,.).
Justiciability
deals with the boundaries of law and adjudication. Its concern is
with the question of which issues are susceptible to becoming the
subject of legal norms or adjudication by a court of law.
Justiciability is not a legal concept with a fixed content or one
that is susceptible to precise scientific verification. Its
utilisation is the result of many subtle pressures.
Poe
v Ullman 367 U.S. 497 (1961)…,.
In
Flast v Cohen 392 U.S. 83 (1968) the Supreme Court of the United
States of America held as follows…,:
“Justiciability
is the term of art employed to give expression to this dual
limitation placed upon federal courts by the 'case and controversy'
doctrine. Justiciability is itself a concept of uncertain meaning and
scope. Its reach is illustrated by the various grounds upon which
questions sought to be adjudicated in federal courts have been held
not to be justiciable. Thus, no justiciable controversy is presented
when the parties seek adjudication of only a political question, when
the parties are asking for an advisory opinion, when the question
sought to be adjudicated has been mooted by subsequent developments,
and when there is no standing to maintain the action.”…,.
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
principles relating to mootness were referred to in Koko v Eskom
Holdings Soc Limited (J200/18) [2018] ZALCJHB 76…, as follows:
“The
doctrine of mootness is well developed in the American constitutional
law jurisprudence. A case becomes moot if a party seeks to obtain
judgment on a pretended controversy, when, in reality, there is
none…, or a judgment upon some matter which, when rendered, for any
reason, cannot have any practical effect upon an existing
controversy. Courts exist to resolve controversies and not abstract
issues. As I see it, for a court to intervene and assist the warring
parties, there must be controversy between the parties. The
dictionary meaning of the term controversy is a dispute, argument, or
debate, especially one concerning a matter about which there is a
strong disagreement. Further, the controversy must be a live one. Put
differently, it must exist between the warring parties. A case would
be 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. It is moot if it no longer presents an
existing or live controversy or the prejudice or threat of prejudice
which, to an applicant, no longer exists.”
In
National Coalition for Gay and Lesbian Equality and Others v Minister
of Home Affairs 2000 (2) SA 1 (CC), footnote 18 to para 21 records
the following:
“A
case is moot and therefore not justiciable if it no longer presents
an existing or live controversy which should exist if the Court is to
avoid giving advisory opinions on abstract propositions of law. Such
was the case in J T Publishing (Pty) Ltd and Another v Minister of
Safety and Security and Others [1996] ZACC 23; 1997 (3) SA 514 (CC)
(1996 (12) BCLR 1599), where DIDCOTT J said the following at para
[17]:
'(T)here
can hardly be a clearer instance of issues that are wholly academic,
of issues exciting no interest but an historical one, than those on
which our ruling is wanted have now become.'”
The
question for determination, in relation to the justiciability of the
issues raised and the relief sought in the court application, is
whether the dissolution of Parliament by operation of section 143(1)
of the Constitution has rendered the issues raised by the court
application moot.
Section
143(1) of the Constitution provides that:
“143
Duration and dissolution of Parliament
(1)
Parliament is elected for a five-year term which runs from the date
on which the President-elect is sworn in and assumes office in terms
of section 94(1)(a), and Parliament stands dissolved at midnight on
the day before the first polling day in the next general election
called in terms of section 144.”
It
is common cause that the life of the National Assembly in which the
first applicant had a tenured seat ended at midnight on 29 July 2018.
Thus, the relief sought by the first applicant, that she be declared
a Member of Parliament, is no longer possible. It would be an invalid
order. The question therefore is whether, in the circumstances, the
Court can still make a determination on whether or not the first
respondent failed to fulfil an alleged constitutional obligation to
protect the tenure of the seat of its Member, as contended by the
applicants.
The
question is not just whether Parliament has the constitutional
obligation of the nature contended for by the first applicant under
section 119(1), as read with section 129(1)(k), of the Constitution.
Such a question would have been posed and determined for the specific
purpose of having the relief sought by the first applicant granted as
protection and enforcement of the right she claimed she had in the
occupation of the seat of Parliament.
A
matter is not moot only at the commencement of proceedings. It may be
considered moot at the time the decision on the matter is to be made.
The
reason for determining the question whether the first applicant has
shown that Parliament has a constitutional obligation under section
119(1), as read with section 129(1)(k) of the Constitution of the
nature and scope alleged would be the grant of the relief sought. The
decision would follow a finding of breach of the constitutional
obligation in relation to the right of the first applicant to occupy
the seat of Parliament. The dissolution of Parliament rendered it
legally meaningless for the Court to grant the first applicant the
specific relief she sought by way of the court application. It also
became a futile exercise to embark on the consideration and
determination of the question whether or not Parliament had a
constitutional obligation under section 119(1), as read with section
129(1)(k), of the Constitution of the nature and scope contended for
by the first applicant.
In
Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342, the
Supreme Court of Canada set out the stages of an inquiry into the
question whether or not a matter is moot. At p4…, of the judgment
it said:
“The
doctrine of mootness is part of a general policy that a court may
decline to decide a case which raises merely a hypothetical or
abstract question. An appeal is moot when a decision will not have
the effect of resolving some controversy affecting or potentially
affecting the rights of the parties. Such a live controversy must be
present not only when the action or proceeding is commenced but also
when the court is called upon to reach a decision. The general policy
is enforced in moot cases unless the court exercises its discretion
to depart from it. The approach with respect to mootness involves a
two-step analysis. 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 the interest of
clarity, a case is moot if it does not present a concrete controversy
even though a court may elect to address the moot issue).”…,.
The
constitutional application before the Court is moot as there is no
longer a concrete legal dispute between the parties. The purported
live controversy is whether the first respondent has a constitutional
obligation to subject every dispute that impacts on the tenure of a
seat of a Member of Parliament in terms of section 129(1)(k) of the
Constitution to the courts for determination. The question became an
abstract question when the key relief sought by the first applicant,
to be declared a Member of Parliament, was no longer within the power
of the Court to grant by operation of law. The relief sought in terms
of paragraph 3 of the applicants' draft order, that the third
respondent's written notice to the second respondent be declared
null and void, was no longer grantable.
In
De Funis v Odegaard (1974) 416 US 312, a student was denied admission
as a first year law student at the University of Washington Law
School. He challenged the decision, contending that the procedures
and criteria employed by the Law School Admission Committee
discriminated against him on account of his race in violation of the
equal protection clause of the Fourteenth Amendment of the United
States Constitution. The trial court granted a mandatory injunction
commanding the Law
School
to admit the student. On appeal, the judgment was reversed by the
Washington Supreme Court. The student then petitioned the United
States Supreme Court for a writ of certiorari. The writ resulted in a
stay of execution of the Washington Supreme Court's decision
pending the final disposition of the case. By the time the
substantive matter came before the Supreme Court, the student had
registered for his final quarter in the law school. The Supreme Court
held that it could not consider the substantive constitutional issues
raised by the parties because the student would complete his law
school studies regardless of the decision of the Court.
WOOLMAN
& BISHOP, Constitutional Law of South Africa (2ed Juta & Co
(Pty) Ltd, Cape Town, 2008) (Cheryl Loots…,.).
The
Court cannot order occupation of a seat in a Parliament that has been
dissolved in terms of the law at the end of its five-year term. A
determination of the question of the existence or otherwise of the
alleged constitutional obligation on the first respondent would be
done in the abstract as its outcome would have no practical effect on
the relief sought by the applicants. The determination of the matter
would be an academic exercise. A decision in favour of the first
applicant would not be carried into effect.
The
refusal of courts to decide cases which have become moot because of
cessation of a dispute between parties derives from the common law
notion that the function of a court is limited to determining rights
and obligations that are actually controverted in the particular case
before the court.
In
Mills v Green 159 U.S. 651 (1895)…, the Supreme Court of the United
States of America held as follows:
“The
defendant moved to dismiss the appeal, assigning as one ground of his
motion - 'that there is now no actual controversy involving real
and substantial rights between the parties to the record, and no
subject matter upon which the judgment of this Court can operate.'
We
are of opinion that the appeal must be dismissed upon this ground,
without considering any other question appearing on the record or
discussed by counsel. The duty of this Court, as of every other
judicial tribunal, is to decide actual controversies by a judgment
which can be carried into effect, and not to give opinions upon moot
questions or abstract propositions, or to declare principles or rules
of law which cannot affect the matter in issue in the case before it.
It necessarily follows that when, pending an appeal from the judgment
of a lower court, and without any fault of the defendant, an event
occurs which renders it impossible for this Court, if it should
decide the case in favor of the plaintiff, to grant him any effectual
relief whatever, the court will not proceed to a formal judgment, but
will dismiss the appeal. And such a fact, when not appearing on the
record, may be proved by extrinsic evidence. Lord v Veazie, 8 How.
251; California v San Pablo & Tulare Railroad, 149 U.S. 308.”…,.
WHETHER
OR NOT THE COURT MAY HEAR THE MATTER DESPITE THE FINDING OF MOOTNESS
The
mere fact that the matter is moot does not constitute an absolute bar
to a court to hear a matter. Whilst a matter may be moot, as between
the parties, that does not, without more, render it unjusticiable.
The court retains a discretion to hear a moot case where it is in the
interests of justice to do so. J T Publishing (Pty) Ltd v Minister of
Safety and Security 1997 (3) SA 514 (CC)…,.
Courts
may be guided in the exercise of discretion by considering the
underlying rationale of the mootness doctrine. The Supreme Court of
Canada, in Borowski v Canada (Attorney General) [1989] 1 S.C.R. 342,
outlined the policy considerations a court may take into account in
deciding whether or not to exercise its discretion to hear a moot
case. At p 5…., of the judgment it said:
“The
first rationale for the policy, with respect to mootness, is that a
court's competence to resolve legal disputes is rooted in the
adversary system. A full adversarial context, in which both parties
have a full stake in the outcome, is fundamental to our legal system.
The second is based on the concern for judicial economy which
requires that a court examine the circumstances of a case to
determine if it is worthwhile to allocate scarce judicial resources
to resolve the moot issue. The third underlying rationale of the
mootness doctrine is the need for courts to be sensitive to the
effectiveness or efficacy of judicial intervention and demonstrate a
measure of awareness of the judiciary's role in our political
framework. The Court, in exercising its discretion in an appeal
which is moot, should consider the extent to which each of these
three basic factors is present. The process is not mechanical. The
principles may not all support the same conclusion and the presence
of one or two of the factors may be overborne by the absence of the
third, and vice versa.”
Courts
in this jurisdiction do pay homage to the demands of the adversarial
system of resolution of disputes. The adversarial system contemplates
a situation in which both parties before a court have an interest in
the outcome of the case. The system envisages a situation where the
determination of the matters in dispute would have practical and
tangible consequences for the contending parties. It would not be in
the interests of justice for a court to determine a moot case where
its decision has no practical effect on the parties.
In
Independent Electoral Commission v Langeberg Municipality 2001 (3) SA
925 (CC), the Constitutional Court of South Africa had occasion to
consider the factors which ought to be taken into account in
determining whether it is in the interests of justice to hear a moot
matter. It held as follows…,:
“This
Court has a discretion to decide issues on appeal even if they no
longer present existing or live controversies. That 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.
This does not mean, however, that once this Court has determined one
moot issue arising in an appeal it is obliged to determine all other
moot issues.”
The
argument advanced by counsel for the applicants, at the hearing of
the court application, was that the principle of mootness does not
apply if the judgment of the Court will have a practical effect. He
asserted that the first applicant's seat was declared vacant by the
first respondent prematurely, disabling her from completing her term
as a Member of Parliament. The argument was that she lost financial
benefits that would have accrued to her in her capacity as a Member
of Parliament. On this basis, counsel for the applicants argued that
if the court application succeeds the first applicant may sue for
damages arising out of the second and third respondents' conduct.
It
was the first applicant's argument that the Court should not avoid
a moot case when it is clear that it concerns issues that are capable
of repetition. Counsel for the applicants said that there was need
for an authoritative interpretation by the Court of section 129(1)(k)
of the Constitution, as numerous matters brought to the Court
revolved around the disputed interpretation.
Counsel
for the first and second respondents, on the other hand, was on
strong ground when he argued that the exercise by a court of the
discretion to hear a moot issue is dependent on the facts placed
before it. There should be no new issues arising. He argued that the
case of loss of financial benefits being asserted by the first
applicant was not raised in the papers before the Court. It was an
entirely new issue being raised in oral submissions. The factor of
“fullness of argument” required to be considered in assessing
whether or not it is in the interest of justice to hear a moot matter
is absent.
A
constitutional matter must be specifically pleaded and motivated in
the founding affidavit. A party is not permitted to make his, her or
its case through oral argument at the hearing of the constitutional
application. It is an established principle of the law that the other
party must not be left in any doubt as to the case which he, she or
it has to meet.
In
Prince v President of the Law Society of the Cape of Good Hope and
Others 2001 (2) SA 388 (CC), the Constitutional Court of South Africa
held as follows…,:
“Parties
who challenge the constitutionality of a provision in a statute must
raise the constitutionality of the provisions sought to be challenged
at the time they institute legal proceedings. In addition, a party
must place before the court information relevant to the determination
of the constitutionality of the impugned provisions. Similarly, a
party seeking to justify a limitation of a constitutional right must
place before the court information relevant to the issue of
justification. I would emphasise that all this information must be
placed before the court of first instance. The placing of the
relevant information is necessary to warn the other party of the case
it will have to meet, so as (to) allow it the opportunity to present
factual material and legal argument to meet that case. It is not
sufficient for a party to raise the constitutionality of a statute
only in the heads of argument, without laying a proper foundation for
such a challenge in the papers or the pleadings. The other party must
be left in no doubt as to the nature of the case it has to meet and
the relief that is sought. Nor can parties hope to supplement and
make their case on appeal.”…,.
As
regards the need for the Court to make an authoritative
interpretation of section 129(1)(k) of the Constitution, it is noted
that in appropriate circumstances courts have exercised their
discretion to decide seemingly moot cases where the result of
refusing to decide the issues would create a situation “capable of
repetition, yet evading review.” WOOLMAN
& BISHOP, Constitutional Law of South Africa (2ed Juta & Co
(Pty) Ltd, Cape Town, 2008)…,.
In
Roe v Wade 410 U.S. 113 (1973) the Supreme Court of the United States
of America exercised its discretion to hear a moot matter because it
was potentially capable of repetition yet evading review. In that
case, a pregnant woman's class action challenging the
constitutionality of State anti-abortion statutes reached the Supreme
Court of the United States of America only postpartum. In deciding to
hear the case, it held as follows…,:
“The
usual rule in federal cases is that an actual controversy must exist
at stages of appellate or certiorari review, and not simply at the
date the action is initiated. United States v Munsingwear, Inc., 340
U. S. 36 (1950); Golden v Zwickler, supra; SEC v Medical Committee
for Human Rights, 404 U. S. 403 (1972). But when, as here, pregnancy
is a significant fact in the litigation, the normal 266-day human
gestation period is so short that the pregnancy will come to term
before the usual appellate process is complete. If that termination
makes a case moot, pregnancy litigation seldom will survive much
beyond the trial stage, and appellate review will be effectively
denied. Our law should not be that rigid. Pregnancy often comes more
than once to the same woman, and, in the general population, if man
is to survive, it will always be with us. Pregnancy provides a
classic justification for a conclusion of non-mootness. It truly
could be 'capable of repetition, yet evading review'. Southern
Pacific Terminal Co. v ICC, 219 U.S. 498, 515 (1911). See Moore v
Ogilvie 394 U. S. 814, 816 (1969); Carroll v Princess Anne 393 U.S.
175, 178-179 (1968); United States v W.T. Grant Co. 345 U.S. 629,
632-633 (1953).”…,.
In
Tremblay v Daigle [1989] 2 S.C.R. 530, the Supreme Court of Canada
exercised its discretion to decide an abortion case despite the fact
that it had become moot. In this case, Tremblay relied on the
constitutional right to life of a foetus to claim an injunction
against his girlfriend to restrain her from having an abortion. The
Court exercised its discretion to decide the case because it believed
that it was important to remove the threat of such injunctive
proceedings in the interest of other pregnant women. It held as
follows…,:
“As
we have indicated, the Court decided, in its discretion, to continue
the hearing of this appeal although it was moot, in order to resolve
the important legal issue raised so that the situation of women in
the position in which Ms. Daigle found herself could be clarified. It
would, however, be quite a different matter to explore further legal
issues which need not be examined in order to achieve that objective.
The jurisprudence of this Court indicates that unnecessary
constitutional pronouncement should be avoided: Morgentaler (No.2),
supra, at p. 51; Borowski, supra; John Deere Plow Co. v Wharton,
[1915] A.C. 330 (P.C.), at p. 339; Winner v S.M.T. (Eastern) Ltd,
[1951] S.C.R. 887, at p. 915.”…,.
Where
a matter is of such a nature that it might keep arising in the Court
or where there is need to resolve a serious legal question, the Court
may exercise its discretion to hear the moot issue by reason of its
significance, as it would, in such circumstances, be in the interests
of justice to make a determination on the issue.
It
is the applicants' case that an authoritative interpretation of
section 129(1)(k) of the Constitution by the Court is of utmost
importance, as similar questions to those raised by the first
applicant have seized the Court's mind.
The
applicants' argument does not find favour with the Court. It does
not take into account the fact that the Court has already made a
pronouncement on the interpretation of section 129(1)(k) of the
Constitution. In Madzimure and Ors v The President of the Senate and
Ors CC08-19…, the Court said:
“The
purpose of section 129 of the Constitution is to provide for
circumstances in which the tenure of seat of a Member of Parliament
comes to an end. Section 129(1)(k) of the Constitution specifies one
of the circumstances in which the tenure of seat of a Member of
Parliament comes to an end and the seat becomes vacant. Tenure of
seat of a Member of Parliament means the tenure of the right of a
Member of Parliament to occupy the seat following an election. The
provisions of section 129(1)(k) of the Constitution may be summarised
as being that –
(a)
The Member of Parliament should have been a member of a political
party when he or she was elected to Parliament;
(b)
The Member of Parliament should have ceased to belong to the
political party, either by voluntary withdrawal of membership or by
being expelled from the political party concerned; and
(c)
The political party concerned should have given a written notice to
the Speaker or the President of the Senate of the cessation of
membership of it by the Member of Parliament. In the written notice,
the political party concerned must declare that the Member of
Parliament has ceased to belong to it….,.
The
role of the Speaker or the President of the Senate, in the process
leading to the creation of a vacancy in the seat of a Member of
Parliament in terms of section 129(1)(k) of the Constitution, is
facilitative. It is not judicial in nature.
The
role the Speaker or the President of the Senate has to play in the
process is to satisfy himself or herself that the document he or she
has received is from a political party and that it contains a written
notice declaring that the Member of Parliament who was a member of
that political party when elected to Parliament has ceased to belong
to the political party concerned. The Speaker or the President of the
Senate has no power to prevent the occurrence of the creation of the
vacancy in the seat of a Member of Parliament commanded by section
129(1)(k) of the Constitution as the consequence of the communication
and receipt of the written notice.”
An
authoritative interpretation of the relevant section has already been
given by the Court. It is questionable, to say the least, that the
present case can be said to fall into the category of cases where the
Court may exercise its discretion to hear a moot case in order to
settle an important legal question.
DISPOSITION
In
the result, the application is dismissed with no order as to costs.
