This
is an urgent chamber application for an order directing the Registrar
to set down for hearing, on an urgent basis, the main application the
applicants purported to file on 1 March 2018.
The
applicants are political parties represented by Mr Mukwazhe, who is
the leader of the first applicant. In the application purportedly
filed on 1 ...
This
is an urgent chamber application for an order directing the Registrar
to set down for hearing, on an urgent basis, the main application the
applicants purported to file on 1 March 2018.
The
applicants are political parties represented by Mr Mukwazhe, who is
the leader of the first applicant. In the application purportedly
filed on 1 March 2018, under case no. CCZ11/18 (the main
application), the applicants did not seek leave to file the
application. An endorsement was made on the application to the effect
that leave to apply for direct access to the Constitutional Court
(“the Court”) was not necessary. The parties in that application
are the same as those in the present application….,.
The
first respondent opposed the application for an order that the main
application be set down for hearing on an urgent basis. He took, as a
point in
limine,
that, in terms of Rule 21 of the Constitutional Court Rules, S.I.61
of 2016 (“the Rules”), the applicants ought to have applied for
direct access before they filed the main application. He contended
that the main application filed by the applicants is not one that
falls within the matters which do not require leave to approach the
Court directly. There cannot be a case for an urgent hearing of a
matter that is not properly before the Court….,.
The
third respondent contended that the main application was not properly
before the Court for the reason of non-compliance with Rule 21(1) of
the Rules which required the applicants to seek authority to access
the Court directly before filing the application.
The
third respondent also contended that the application did not comply
with Rule 16 of the Rules for the reason that it was not in Form
CCZ1….,.
At
the hearing of the application, the Court intimated to the parties
that, as the dates for the harmonised general elections could be set
by proclamation in terms of section 144(1) of the Constitution any
time soon, and the applicants were not legally represented, it was
prudent to deal with the application as one for direct access.
Authority for the approach is found in Rule 5 of the Rules.
The
respondents agreed.
The
applicants conceded that they ought to have sought and obtained leave
to file the main application. They also agreed that the application
be treated as one for direct access….,.
WHETHER
THE APPLICANTS COULD FILE THEIR MAIN APPLICATION WITHOUT FIRST
OBTAINING DIRECT ACCESS
Mr
Mukwazhe
had argued that section 167(5) of the Constitution allowed the
applicants to file the main application “with or without leave”.
The applicants' understanding of section 167(5) of the Constitution
was that a litigant had an option to either seek leave or approach
the Court directly without first seeking and obtaining leave to do
so.
Section
167(5) of the Constitution provides as follows:
“(5)
Rules of the Constitutional Court must allow a person, when it is in
the interests of justice, and with or without leave of the
Constitutional Court -
(a)
To bring a constitutional matter directly to the Constitutional
Court;
(b)
To appeal directly to the Constitutional Court from any other court;
(c)
To appear as a friend of the court.”
Section
167 of the Constitution prescribes the jurisdiction of the Court. The
Court has original, concurrent, exclusive and appellate jurisdiction
on constitutional matters only. As a result, it decides only
Constitutional matters and issues connected with decisions on
Constitutional matters. The Court makes the final decision whether a
matter is a constitutional matter or whether an issue is connected
with a decision on a Constitutional matter.
Constitutional
matters over which the Court has original and exclusive jurisdiction
are specifically set out in section 167(2) of the Constitution. The
other provisions of the Constitution on constitutional matters or
issues in connection with a decision on a constitutional matter for
the hearing and determination of which direct access to the Court is
guaranteed are found in sections 113(7), 131(8)(b), 175(3), 175(4)
and paragraph 9(2) of the Fifth Schedule.
In
respect of all the constitutional matters over which the Court has
concurrent or appellate jurisdiction, the provisions of section
167(5)(a) and (b) of the Constitution make it clear that the question
whether direct access to the Court is to be had with leave or without
such leave is to be determined by the Rules. The purpose of requiring
the Rules
to
prescribe the circumstances in which an application for leave for
direct access to the Court is necessary is to ensure that the Court
plays its role of supervising the maintenance of the Constitutional
order.
The
Constitution delegated the power of setting the conditions for direct
access to the Court (in matters over which the Court does not have
exclusive jurisdiction) to the makers of the Rules. A litigant cannot
rely on section 167(5) of the Constitution and ignore the Rules which
give effect to the Constitution. It is the provisions of the Rules
that litigants have to comply with. It was not for the officials of
the applicants to decide whether or not to seek leave for direct
access to the Court. There is no Rule that authorises a litigant
seeking the kind of relief sought by the applicants, on the grounds
stated, to approach the Court directly without leave.
The
Rules
set
out the objective factors a litigant has to state in a chamber
application for direct access for consideration by the Court or Judge
in the determination of the question whether it is in the interests
of justice to grant direct access. There must be filed with the
Registrar, and served on all parties with direct or substantial
interest in the relief claimed, an application setting out the
grounds on which it is claimed it is in the interests of justice that
direct access be granted.
Absent
the grounds on which it is claimed that it is in the interests of
justice that direct access be granted, the Court or Judge has no
basis on which to decide whether or not to grant direct access. A
finding has to be made by the Court or Judge of the existence of the
interests of justice requiring that a decision that direct access be
granted be made. Direct access to the Court in matters over which
other courts have jurisdiction is a discretionary procedure which is
granted only in exceptional cases - see Betlane
v Shelley Court
CC 2011 (1) SA 388 (CC), 2011 (3) BCLR 264 [22]; A
Party and Another v The Minister for Home Affairs and Others, Moloko
and Others v The Minister for Home Affairs and Another
2009 (3) SA 649 (CC), 2009 (6) BCLR 611 (CC) [70].
CURRIE
and De WAAL, in “The
Bill of Rights Handbook”,
6ed (2013)…, have the following to say on the subject:
“Direct
access means that a matter is heard by the Constitutional Court at
first instance….,. The Rules provide for direct access to the
Constitutional Court in matters over which concurrent jurisdiction is
exercised; where the matter is of sufficient public importance or
urgency that direct access will be in the interests of justice.
Direct access is an extraordinary procedure that has been granted by
the Constitutional Court only in a handful of cases.”
The
applicants were required, by law, to seek leave to approach the Court
directly with their main application. They did not attempt to argue
that theirs is a matter over which leave to approach the Court
directly is not required.
WHETHER
IT IS IN THE INTERESTS OF JUSTICE TO GRANT THE APPLICANTS DIRECT
ACCESS
The
Court has analysed the matter and has come to the conclusion that it
would not be in the interests of justice to grant the applicants
direct access. Pursuit of justice must be shown to be at the heart
of
every legal remedy sought to be granted by a court of law.
The
requirements for an application for direct access are set out in Rule
21(3) of the Rules 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.”
Further,
in elaborating Rule21(3)(a), Rule 21(8) of the Rules provides as
follows:
“(8)
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 him or her;
and
(c)
Whether there are disputes of fact in the matter.”
All
these requirements are punctuated by section 167(5) of the
Constitution which requires that the Rules must provide that direct
access to the Court ought to be availed where it is in the interests
of justice to do so. What must always be borne in mind by the Court
or Judge deciding the issue
of
direct access is the fact that the Court occupies a special position
in the scheme for the protection of the Constitutional order. It is
the only court whose jurisdiction is specifically limited to hearing
and determining Constitutional matters only or issues connected with
decisions on Constitutional matters. These are ordinarily matters
that require consideration of issues of law relating to the
interpretation, protection or enforcement of Constitutional
provisions. The interests of justice are the overriding
consideration.
In
order for direct access to be granted, the applicants had to show
that they had prospects of success in the main matter. In Transvaal
Agricultural Union v Minister of Land Affairs and Another
1996 (12) BCLR 1573, 1997 (2) SA 621 (CC)…, the Constitutional
Court of South Africa said, in part:
“[46]
The applicant has failed to establish that this is a case in which
the ordinary procedures ought not to have been followed. There are
important issues which are within the jurisdiction of the Supreme
Court and which need to be resolved by it before this Court is
approached for relief. As far as the other issues are concerned there
is neither the urgency
nor
the prospects of success necessary to justify direct access to this
Court.
The application for direct access must therefore be dismissed….,.”
In
Bruce
and Another v Fleecytex Johannesburg CC and Others
1998
(2) SA 1143 (CC), 1998 (4) BCLR 415 (CC)…, CHASKALSON P remarked:
“[7]
Whilst
the prospects of success are clearly relevant to applications for
direct access to this Court, there are other considerations which are
at least of equal importance.
This Court is the highest Court on all constitutional matters.”…,.
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.
In
De
Lacy and Another v South African Post Office
2011 (9) BCLR 905 (CC)…, the Court of South Africa, whilst
considering the approach in the application of the provisions of
section 167(6) of the Constitution of South Africa,
remarked:
“[50]
Section 167(6)
of
the Constitution requires this Court to allow a person to bring a
matter directly should it be in the interests of justice to do so;
where the interests of justice lie depends on the outcome of a
meticulous weighing-up of relevant considerations. Chief
of these, but not solely decisive, would be whether there are
prospects of success.
For instance, the public importance of the issue raised or its impact
on the administration of justice may well favour granting direct
access in a matter in which prospects of success may be open to some
doubt.”...,.
See
also Dormehl
v Minister of Justice and Others
2000 (2) SA 987 (CC).
The
applicants seek, in the main application, an order interdicting the
President from proclaiming the dates for the harmonised general
elections. Paragraph 12 of the founding affidavit states:
“12.
This is an application wherein the applicants are seeking an order to
have the first respondent hold the pronouncement of election dates
until the Political Parties Finance Act is repealed since it is ultra
vires
the Constitution as it does not protect the other political parties,
especially section 3 that says;
'….,
each political party whose candidates received at least five per
centum
of the total number of votes cast in the most recent general
election'…,.”.
Paragraph
1 of the draft order relates to the same relief.
Section
144(1) of the Constitution, in terms of which the President is to act
in setting the dates for the harmonised general elections, is
mandatory. It provides:
“144
General election resulting from dissolution of Parliament
(1)
Where
Parliament has not earlier passed resolutions to dissolve in terms of
section 143(2), the President must, by proclamation, call and set
dates for a general election to be held within the period prescribed
in section 158.”
The
timing of the elections is governed by section 158(1)(a) of the
Constitution, which provides as follows:
“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
President is obliged, under section 144(1) as read with section
158(1)(a) of the Constitution, to set dates by proclamation for the
holding of harmonised general elections within the period prescribed.
The use of the word “must” in both sections 144(1) and 158(1) of
the Constitution underscores the fact that the obligation imposed on
the President to do what is specified, for the specific purpose
stated, and in the manner prescribed, is a mandatory obligation. The
immutable requirement is that when the time comes for him to do so,
the President has no option but to do what he is specifically bound
by the Constitution to do. Section 90(1) of the Constitution imposes
on the President the duty to obey the Constitution. Once the
President has called and set the dates for the harmonised general
elections in terms of section 144(1) of the Constitution, section
158(1)(a) makes it clear that those elections must be held on the
dates set.
No-one,
including the courts, has power to alter what is mandated by the
Constitution in clear, unambiguous and mandatory terms. It would be
unconstitutional for a Court or Judge to order the President not to
call and set dates for the holding of the harmonised general
elections as prayed for by the applicants. The mandatory obligation
is imposed on the President by the Constitution for the benefit of
all the people of Zimbabwe.
It
is the Constitution itself which dictates what the President must do.
The proclamation is directly demanded by the Constitution. The
Constitution is the supreme law of the land and the courts cannot
abrogate it. Their duty is to enforce what the Constitution demands.
The
applicants have no right which may conceivably be injured by the
lawful performance by the President of the Constitutional obligation.
From
the nature of the relief sought, it is clear that the applicants have
no right, let alone a prima
facie
right, to payment of the money payable under the Political Parties
(Finance) Act [Chapter
2:11]
to any political party whose candidates received at least five per
centum
of the total number of votes cast in the most recent general
election.
The
principle that an interdict cannot be granted to prevent the
occurrence of a lawful act has become part of our law. In other
words, a court of law has no competence to make such an order which
is by nature and effect contrary to the rule of law.
In
Minister
of Lands v Paliouras; Minister of Lands v Wiggill
2001 (2) ZLR 22 (S), CHIDYAUSIKU ACJ…,
stated as follows:
“The
respondents' contention that the appellant is prohibited from
exercising any of the above powers which he is expressly authorised
by Parliament to exercise raises the fundamental issue of
jurisdictional competence. Can a court interdict the appellant from
acquiring land for redistribution in accordance with explicit
provisions of an Act of Parliament? Not only is this a debatable
point, but the wisdom of such an interdict is questionable. The
interdiction of patently lawful conduct can hardly further the rule
of law. That issue however is not before the court and will have to
await determination another day.”
The
determination of the issue came in Airfield
Investments (Pvt) Ltd v Minister of Lands, Agriculture and Rural
Resettlement and Others
2004
(1) ZLR 511 (S). The
Court said…,:
“When
the appellant lodged the application for the interim relief before
the court a
quo
the
acquisition of the land by the State was a fait
accompli;
all
rights of ownership having been extinguished on its part. The
acquiring authority having done everything it was obliged by the law
to do to acquire the land for resettlement purposes, there was no
outstanding act against the performance of which the acquiring
authority could be temporarily interdicted.
An
interim interdict is not a remedy for prohibiting lawful conduct.
At
the time the first respondent made the order by which the appellant
was deprived of ownership of the land, he acted lawfully in the
exercise of the power conferred upon him. Subsection (1) of section 8
of the Act gave him the power to make the order and its effect
reflected the legal consequences of that lawful act.
To
suspend the effects of the order of acquisition lawfully made and
intended by the legislature would amount to striking down the Act of
Parliament or rendering it completely ineffective, thereby creating a
vacuum pending determination of the constitutionality of the impugned
sections of the Act. That would be improper for the court to do
because the clear intention of the legislature was that an order of
acquisition, properly made in terms of subsection (1) of section 8 of
the Act, should have the effect of depriving the owner or occupier of
the rights of ownership in the land and vesting them in the acquiring
authority.”
GOWORA
AJA
weighed in on this principle in Zimbabwe
Revenue Authority v Packers International (Private) Limited
SC28-16
where…,
she held:
“An
interdict serves to protect a right not an obligation. The papers
filed on behalf of Packers did not identify any right that ZIMRA had
threatened. The court a
quo
found, as a matter of fact, that ZIMRA had acted in terms of the law
in assessing VAT which remained unpaid. Once this finding was made,
including the further finding that the agent had been appointed
lawfully, there was no lawful justification at law for suspending
payment for a week.
I
am fortified in this view by the remarks of the learned DEPUTY
CHIEF JUSTICE MALABA
in the Mayor
Logistics
case supra
to the following effect:
'The
subject of the application is not the kind of subject matter an
interdict, as a remedy, was designed to deal with. An interdict is
ordinarily granted to prevent continuing or future conduct which is
harmful to a prima
facie
right pending final determination of that right by a court of law.
Its object is to avoid a situation in which, by the time the right is
finally determined in favour of the applicant, it has been injured to
the extent that the harm cannot be repaired by the grant of the
right.
It
is axiomatic that the interdict is for the protection of an existing
right. There has to be proof of the existence of a prima
facie
right. It is also axiomatic that the prima
facie
right is protected from unlawful conduct which is about to infringe
it.
An
interdict cannot be granted against past invasions of a right nor can
there be an interdict against lawful conduct. Airfield
Investments (Pvt) Ltd v Minister of Lands & Ors
2004
(1) ZLR 511 (S); Stauffer
Chemicals v Monsato Company
1988 (1) SA 895; Rudolph
& Another v Commissioner for Inland Revenue & Others
1994 (3) SA 771.'
The
applicant accepted, in the founding affidavit, that the respondent
acted lawfully in enforcing the obligation to pay the tax
notwithstanding the noting by it of the appeal to the Fiscal Appeal
Court against the correctness of the assessment. It did not allege
any unlawful conduct on the part of the respondent which would
justify the granting of an interdict. It also accepted that at the
time the respondent put in place measures to collect the tax, the
provisions of sections 36 of the VAT Act and 69(1) of the Income Tax
Act were binding on it. That means that the applicant had no prima
facie
right in existence at the time not to pay the amount of tax it was
liable to pay to the fiscus.
Sections 36 of the VAT Act and 69(1) of the Income Tax Act protect a
duty, not a right.”
See
also Judicial
Service Commission v Zibani and Others
SC68-17.
As
correctly submitted by counsel for the third respondent, the
proclamation can only be challenged after it is made and the
challenge can only be on the ground that it has not complied with the
relevant provisions of the Constitution….,.
The
applicants contended that the Political
Parties (Finance) Act [Chapter
2:11]
should be repealed. The Court has no power to order the repeal of any
legislation. Repeal of legislation is a legislative act and not a
judicial act. The declaration of constitutional invalidity of
legislation is the judicial act.
It
was not sought by the applicants.
The
applicants cannot seek to have the validity of the Political Parties
(Finance) Act [Chapter
2:11]
impugned whilst also asking for an order that they be paid
US$420,000= payable only in terms of the Political Parties (Finance)
Act [Chapter
2:11].
As such, the main application has no prospects of success because
what the applicants seek is not grantable….,.
The
third respondent also raised the special plea of res
judicata
against the applicants. She
alleged that in 2013 the first applicant filed an application, under
case no. CCZ25/13, seeking funding in terms of the Political Parties
(Finance) Act [Chapter
2:11].
The application was dismissed by the Court on 26 June 2013….,.
The
third respondent took the point that the dispute in question is res
judicata.
An
examination of the founding affidavit on which the application in
CCZ25/13 was based shows that there are material differences in the
nature of the causes of action pleaded. Although vaguely pleaded, the
applicants' cause of action in CCZ11/18 was that section 3(3) of
the Political Parties (Finance) Act [Chapter
2:11]
contravenes the provisions of section
67(4) of the Constitution. They did not, of course, say which of
their fundamental rights were infringed by the alleged invalidity of
section 3(3) of the Political Parties (Finance) Act [Chapter
2:11].
On that assumed invalidity, the applicants went on to pray for
non-grantable
reliefs….,.
DISPOSITION
In
the result the following order is made:
“The
application for direct access to the Court is dismissed with no order
as to costs.”
