GWAUNZA
JCC: This
is an application in terms of section 85(1(a) of the Constitution of
Zimbabwe.
The
appellants allege that their constitutional rights as enshrined in
sections 70(1(b), 70(1)(d) and 70(1)(c) have been violated through
the manner in which criminal proceedings against them were conducted
in the Magistrates Court sitting at Chivhu.
They
seek an order that the proceedings be quashed and a trial de
novo
ordered before a different magistrate.
IN
LIMINE
The
respondents raise a point in
limine,
to the effect that the applicants are not properly before this Court.
They
contend that the applicants should have approached this Court through
a referral of the matter to it by the Magistrates Court in terms of
section 175(4) of the Constitution. This is in view of the fact that
the constitutional issue upon which the application is premised arose
during the course of proceedings in the Magistrates Court.
It
is not in dispute that the applicants took the opportunity availed by
a postponement granted by consent in the Magistrates Court
proceedings, to approach this Court directly.
Section
175(4) reads as follows:
“Powers
of courts in Constitutional Matters
“175(4)
If a constitutional matter arises in any proceedings before a court
the person presiding over that court may and if so requested by any
party to the proceedings, must, refer the matter to the
Constitutional Court unless he or she considers the request merely
frivolous or vexatious.”
It
is the respondent's contention, in light of this provision, that
the applicants failure to approach this Court in terms of section
175(4) of the Constitution was 'fatal' to the application.
Section
85(1)
provides as follows:
“85
Enforcement
of fundamental human rights and freedoms
(1)
Any of the following persons namely -
(a)
Any person acting in their own interest;
(b)…
(c)…
(d)…
(e)…
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.” (emphasis
added)
The
word “court” is not defined in section 332 of the Constitution,
but in the context in which it is used appears to include the
Constitutional Court.
It
seems to me therefore that on a strict, literal reading of section
85(1)(a), it could be argued, as the appellants briefly do in
casu,
that beyond what is expressly stated therein, the wording does not
place any restrictions on the type of person who may approach the
Constitutional Court directly.
Firstly,
the section is not prefixed with the words 'Subject
to …' or 'Save as otherwise provided in terms of …'
These
phrases are normally used in legislative drafting parlance to
indicate that the provision in question does not have unfettered
application but is to be applied only to the extent that it does not
contradict the specific other provisions mentioned.
This
is clearly not the case in
casu.
Secondly,
the applicants are clearly acting in their own interest, and are
alleging a violation of their fundamental rights.
Thirdly
and more specifically, it could be argued that section 85(1)
does
not expressly exclude a direct approach to this Court where the
violations alleged were perpetrated in the course of proceedings in a
lower court.
This
situation is to be contrasted with some provisions of section 24 of
Zimbabwe's old Constitution, which effectively are the precursor to
some parts of both sections 85 and 175 of the current constitution.
Section
24 read as follows in relevant parts:
“24.
Enforcement of protective provisions
(1)
if any person alleges that the Declaration of Rights has been, is
being or is likely to be contravened in relation to him (or, in the
case of a person who is detained, if any other person alleges such a
contravention in relation to the detained person), then, without
prejudice to any other action with respect to the same matter which
is lawfully available, that person (or that other person) may,
subject to the provision of subsection (3), apply to the Supreme
Court for redress.(2) If in any proceedings in the High Court or in
any court subordinate to the High Court any question arises as to the
contravention of the Declaration of Rights, the person presiding in
that court may, and if so requested by any party to the proceedings
shall refer the question to the Supreme Court unless, in his opinion,
the raising of the question is merely frivolous or vexatious.(3)
Where in any proceedings such as are mentioned in subsection (2) any
such question as is therein mentioned is not
referred
to the Supreme Court then, without
prejudice to the right to raise that question or any appeal from the
determination of the court in those proceedings, no application for
the determination of that question shall lie to the Supreme Court
under subsection (1).”
(my
emphasis)
In
interpreting section 24(3)
and
its
effect,
a number
of authorities ruled that it rendered the provisions of section
24(2), mandatory. In other words, any constitutional issue that arose
during proceedings in a lower court, had
to be referred to the Supreme Court (sitting as a Constitutional
Court), in terms of section 24(2).
Section
175(4) of the current constitution is an exact replica of the old
section 24(2).
It
was for instance held by MALABA
JA
(as he then was), in Tsvangirai
v Mugabe and Anor
2006
(1) ZLR 148 S
as
follows;
“It
is the duty of the party who wants a question as to the contravention
of the Declaration of Rights arising in the proceedings in the High
Court, or in a court subordinate to it, referred to the Supreme Court
for determination, to ensure compliance with the provisions of
section 24(2). The requirement to comply with the procedure
prescribed thereunder is made mandatory by the provision of section
24(3)”.
In
the earlier case of Jesse
v Attorney General
1999
(1) ZLR 121 (S),
GUBBAY
CJ
(as
he then was) had similarly stated as follows;
“Put
differently, the question is whether an applicant may, during the
course of proceedings in the High Court, as in any court subordinate
to it, simply ignore the provisions of section 24(2), and utilise the
procedure laid down in section 24(1). I entertain not the slightest
doubt that the resort by the applicant to section 24(1) of the
Constitution was impermissible.”
GUBBAY
CJ
went on to dismiss the application before him, for contravening
section 24(3) of the Constitution.
It
is thus evident that the application in
casu
would have been declared impermissible, and/or been dismissed, had it
been brought in terms of the old section 24(1).
It
should be noted however, that in the case of Martin
v A-G & Anor (1993) (1) ZLR 153 (S)
it was held that an exception to this general rule would arise in the
situation where a lower court denied an application for referral in
terms of section 24(2) of the old constitution, for reasons other
than those permitted under section 24.
In
that case, the refusal to refer the matter to the Supreme Court was
found to have been premised on a misunderstanding by the Magistrates
Court, of the meaning of the phrase 'frivolous or vexatious'. The
court held that in such circumstances the unsuccessful applicant was
entitled to approach the Supreme Court directly in terms of section
24(1).
While
this is not the situation that the case at hand is concerned with, it
is nevertheless pertinent to note that an applicant such as the one
in Martin's
case, would have had to initially make his application for referral
to a lower court.
The
last argument that could conceivably have been raised against a
finding that the application in
casu
should
suffer the same fate is that, despite subsection 175(4) repeating
word for word, section 24(2) of the old Constitution, the section
that followed it, that is section 24(3), was not similarly imported
into section 175 of the current Constitution.
This
is the subsection that the authorities cited above interpreted as
outlawing a direct approach to the Supreme Court. In addition to
this, reference to the same subsection, in the old section 24(1) also
failed to find its way into the new Constitution.
The
sum total of all this, it appears to me, could be interpreted as
evincing an intention, by the Legislature, to remove completely any
“bar” that an applicant in terms of section 24(1) might have
confronted, arising from the fact that the constitutional issue in
point arose during proceedings in a lower court.
It
could, further be interpreted as creating the impression that the
options for redress that were open to an applicant envisaged in the
old sections 24(2)
(now
section 175(4)), and 24(3) have been widened.
The
critical questions that then arise, against this background, are:
1.
Has the absence of restrictive provisions in both section 85 and
section 175(4) (particularly the former), opened the door very
widely, and given unfettered, direct access to the constitutional
court, to any person who claims an existing, current or impending
violation of their constitutionally guaranteed fundamental rights?;
and
2.
Was this the intention of the Legistature?
These
questions in my view can only be answered on a proper consideration
of relevant rules governing the interpretation of statutes generally
and of the constitution in particular.
In
this respect, it is pertinent to note that a constitution is itself a
statute of Parliament. Therefore, any rules of interpretation that
are regarded as having particular relevance in relation to
constitutional interpretation, can only be additional to the general
rules governing the interpretation of statutes.
The
starting point in relation the interpretation of statutes generally
would be what is termed 'the golden rule' of statutory
interpretation. This rule is authoritatively stated thus in the case
of Coopers
and Lybrand & Others v Bryant
1995
(3) SA 761 (A) at 767;
“According
to the 'golden rule' of interpretation, the language in the
document is to be given its grammatical and ordinary meaning, unless
this would result in some absurdity, or some repugnancy or
inconsistency
with the rest of the instrument”
(my
emphasis)
In
his book 'Principles
of Legal Interpretation - Statutes, Contracts and Wills'
1st
Ed. At page 57, E A Kellaway
echoes
this statement as follows:
“The
dominating Roman-Dutch law principle is that an interpretation which
creates an absurdity is not acceptable (that is 'interpretatio
quae parit absurdum not est admittenda).
(See among other authorities, Exparte Fourie 1962 (3) SA 614 (O);
S
v Nyathi
1978
(2) SA 20 (B) and
Canca
v Mount Free Municipality
1984
(2) SA 870 (TK) 833).”
The
learned author, at page 62, further states:
“Even
if a (South African) court comes to the conclusion that the language
is clear and unambiguous, it is entitled to reject the purely literal
meaning if it is apparent from
the anomalies which flow therefrom that the literal meaning could not
have been intended by the legislature.”
(my
emphasis)
Apposite
to the circumstances of this case, the learned author, after
considering a number of authorities, makes the following remarks at
page 61:
“While
it is not permissible to speculate as to the purpose of an enactment,
the legislative purpose may be sought from the subject matter of the
Act, the enacting clauses in the whole enactment, the
state of the law before the enactment was passed and the surrounding
circumstances:
See
Hunter
v R
1907
TS 910;
Dadoo
Ltd v Krugersdorp Municipal Council
1920
AD 530;” (my emphasis)
And
lastly at page 293, in reference to the maxim 'in
pari materia'
the
learned author states:
“According
to Roman-Dutch law, a later enactment not clear as to its meaning,
which has analogous provisions with regard to, or clauses
corresponding with, an earlier enactment, and particularly where the
later enactment deals with the same subject matter, should, where
feasible, be so interpreted that both provisions cohere, so that the
contents of the earlier one can throw light on the later, unclear
provision. (See
among other authorities,
Brink
v Alfred McAlpine & Sons South Coast Regional Rent Board,
1971
(1) SA 741 (A);
Durban
City Council v Shell and BP SA Petroleum Refineries (Pty) Ltd
1971
(4) SA 466).”
The
principles set out in the dicta
cited
above can aptly and instructively be summarized as follows:
(i)
the Legislature is presumed not to intend an absurdity, ambiguity or
repugnancy to arise out of the grammatical and ordinary meaning of
the words that it uses in an enactment.
(ii)
therefore, in order to ascertain the true purpose and intent of the
Legislature, regard is to be had, not only to the literal meaning of
the words, but also to their practical effect.
(iii)
In this respect -
(a)
the words in question must be capable of an interpretation that is
'consistent' with the rest of the instrument in which the words
appear;
(b)
the state of the law in place before the enactment in question, is a
useful aid in ascertaining the legislative purpose and intention; and
(c)
where an earlier and later enactment (or provision) deals with the
same subject matter, then, in the case of uncertainty, the two should
be interpreted in such a way that there is mutual consistency.
Turning
now to the additional considerations that are particular to the
interpretation of the constitution, I find the following dictum
from the Namibian case of Minister
of Defence, Namibia v Mwandinghi 1992 (2) SA 355 (Nm)
to be both apposite and instructive;
“….the
whole tenor of Chapter 111 (of its constitution) and the influence
upon it of international human rights instruments from which many of
its provisions were derived, call for a generous broad and purposive
interpretation that avoids the austerity of tabulated legalism.”
(my emphasis)
These
remarks are echoed in the following summation by the learned author
EA
Kellaway;
“The
principle of interpretation of a state's constitution incorporating
a bill of rights may be stated thus:
An
interpreter should follow the submitted triple synthesis of
literalism, intentionalism, and purposiveness principle, as is done
in the interpretation of any other statute…”
Thus
while a constitution is to be interpreted in accordance with the
rules relating to statutes generally, the authorities suggest that a
court called upon to interpret such a constitution should give a
generous and purposive construction to its provisions, particularly
the entrenched fundamental rights and freedoms.
It
appears to me that in this process the purpose of the provision in
question is to be given particular attention.
When
all this is applied to the circumstances of this case, there is in my
view no gainsaying the fact that a literal and grammatical meaning
ascribed to section 85(1) would be inconsistent with section 175(4).
This
is to the extent that such meaning would give room to litigants in
proceedings underway in a lower court to abandon such proceedings
midstream and without any ceremony, in order to approach the
Constitutional Court directly in terms of that section.
Such
a meaning would thus introduce an absurdity and possible chaos to a
process that, in terms of the more expansive section 24 of the old
Constitution, was free of such anomalies.
It
is evident that the purpose of the old section 24 and in particular
subsections (1) (2) and (3), was to inject order and certainty into
the process by which constitutional issues arising during proceedings
before the lower courts, were referred to the Constitutional Court
order in the sense that the lower court had the opportunity to call
and hear evidence on, and consider, the issue so as to determine
whether it is not frivolous or vexatious.
Only
then did the court refer the issue to the Constitutional Court.
Through
this process, the Constitutional Court was shielded from a situation
where frivolous and undeserving cases might have been directly
brought to it.
There
was certainty in the process in that the lower court, where it
referred the matter, was fully informed as to both the reason for,
and the effect of, such referral. The effect would be a formal
deferment of the proceedings in that court, pending a constitutional
court determination of the issues referred to it. More importantly,
the risk of parallel proceedings being pursued in the Constitutional
and the lower courts, on different aspects of the same case but based
on the same facts, was obviated.
It
should be noted that the case at hand is an example of the absurdity
that may arise from a strict, literal construction of section 85(1).
The
proceedings in the Magistrates Court were postponed by consent of the
parties. The next thing that happened was a direct application to
this Court, in which aspects of those proceedings are being impugned.
There
is nothing on the record to suggest that the Magistrates Court was
made aware of this development, or if so, through what procedure and
to what effect.
It
may therefore be safe to assume that the lower court is still in the
dark in this regard.
Further
to this, it appears from the facts of the case that evidence should
have been led in the lower court, to enable the magistrate to
determine whether or not the case merited a referral to the
Constitutional Court.
The
end result is that the latter court is seized with a matter that
might not only have required viva
voce
evidence to be led, but may, for all intents and purposes, have been
ruled frivolous or vexatious by the magistrate.
This
Court is not able to call and hear viva
voce
evidence from the parties, and would thus be handicapped in terms of
properly determining the matter.
I
therefore entertain no doubt that the certainty order referred to
above would be completely eroded were the courts to operate on the
basis of a literal and grammatical interpretation of section 85(1).
This
circumstance is not only highly undesirable, it would also constitute
an affront to the time honoured common law principle that a superior
court should be slow to intervene in ongoing proceedings in an
inferior court, except in exceptional circumstances.
This
principle is persuasively articulated as follows in the case of
Wahlhaus
v Additional Magistrate, Johannesburg
1959
(3) SA 113 (A);
“… a
superior court would be slow to exercise any power upon the
unterminated course of criminal proceedings in a court below, but
would do so in rare cases where grave injustice might otherwise
result or where justice might not by other means be attained.”
It
seems to me that the ratio
in the cases of Tsvangirai
v Mugabe and Anor and Jesse v Attorney General,
cited above, was a reaffirmation of this principle, and that it found
fortification in section 24(3) of the old Constitution.
Despite
this 'fortification' not having found its way into the new
Constitution, I am satisfied that the basic principle remains.
It
is, in any case, trite that a statute should, where possible, be
construed in conformity with the common law rather than against it,
except where the statute is clearly intended to alter the common law.
(See
Johannesburg
Municipality v Cohen's Trustees,
1909
TS 811).
I
do not find anything in the wording of section 85(1(a), that could be
said to evince an intention to oust common law on the issue in point.
Sections
85(1) and 175(4) of the current Constitution and section 24 of the
old Constitution, all deal with the same subject matter, that is, the
methods by which matters may be brought to the Constitutional Court.
To
that extent, I am satisfied no basis exists for interpreting the
later provisions in such a way that they do not 'cohere' with the
earlier provisions.
In
other words, the provisions of the old section 24 should be taken as
'throwing light' on the provisions of section 85(1)(a) and 175(4)
of the current Constitution.
I
find, when all is told, that the above expose
and analysis
of
the law and authorities on statutory interpretation clearly favour a
finding, in
casu,
that it was not the intention of the Legislature to oust a procedural
regime that ensured order and certainty in the administration of
justice in the courts, and to introduce in its place, one that would
result in absurdity, disorder and ambiguity. Clearly, the anomalies
that would flow from a literal meaning of section 85(1)(a) could not
have been intended by the Legislature.
Consequently
and except in circumstances akin to those in Martin's
case (supra),
any constitutional issue that arises during proceedings in a lower
court ought to and must be brought to this court only upon referral
in terms of section 175(4) of the constitution.
It
follows from this, that the instant application is not properly
before this Court.
In
the final result, I find that the point in
limine
raised by the respondent has merit and ought to be upheld.
In
the result, it is ordered as follows:
1.
The point in
limine
raised by the respondents be and is hereby upheld.
2.
The application is struck off the roll.
3.
There shall be no order as to costs.
CHIDYAUSIKU
CJ: I
agree
MALABA
DCJ: I
agree
ZIYAMBI
JCC: I
agree
GARWE
JCC: I
agree
GOWORA
JCC: I
agree
HLATSHWAYO
JCC: I
agree
GUVAVA
JCC: I
agree
CHIWESHE
AJCC: I
agree
Mangwana
and Partners, applicants legal practitioners
National
Prosecuting Authority,
first
and second respondents legal practitioners
1.
It
should be noted that reference in this judgment to paragraph(a) of
ss(1) of s85, and its effect, may apply equally to the other
paragraphs of this subsection, which are not relevant in casu
2.
See
also Mukoko v Commissioner General of Police & Others 2009 (1)
ZLR 21 (S)
3.
See also among others, Rattigan vs Chief immigration Officer &
Others 1994 (2) ZLR 54 (S); Capital Radio (Pvt) Ltd v Broadcasting
Authority of Zimbabwe 2003 (2) ZLR 236
4.
Ibid at page at page 216
