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....,.
Absence of Leave to Sue Respondent Judges
It is common cause, that, before instituting proceedings in the court a quo, the third respondent herein did not seek and obtain leave to sue the second to the eighteenth respondents in that matter, who were, at that time, the Chief Justice, Deputy Chief Justice, Acting Judges of the Constitutional Court, Judges of the Supreme Court and Acting Judges of the Supreme Court.
The court a quo reasoned, that, such leave to sue was unnecessary for a variety of reasons:
(i) The first was that the relevant rule of court only applied to actions instituted by way of summons and not to application proceedings.
(ii) The second was that the applications before the court were made in terms of section 85 of the Constitution and there was no requirement for leave to be granted in an application made in terms of that section.
(iii) Lastly, the court opined, that, the respondents in question were cited in their official capacities and had not filed any opposing papers challenging their citation without leave.
In the event, the court found, that, the failure to obtain the leave of the court to sue the judges in question did not nullify or render the entire proceedings fatally defective.
Rule 18 of the High Court Rules 1971 stipulates as follows:
“No summons or other civil process of the court may be sued out against the President or against any of the judges of the High Court without the leave of the court granted on court application being made for that purpose.”…,.
It is not in dispute that both the Chief Justice and the Deputy Chief Justice are also judges of the High Court by operation of section 170(a) of the Constitution.
In my view, it must also be accepted, that, Rule 18 of the High Court Rules applies as well to judges of the Supreme Court by dint of Rule 73 of the Rules of the Supreme Court 2018.
The latter Rule provides, that, in any matter not dealt with in the Rules of the Supreme Court, the practice and procedure of that court shall follow, as closely as may be, the practice and procedure of the High Court in terms of the High Court Act [Chapter 7:06] and the High Court Rules.
Thus, any suit lodged in the Supreme Court against a judge of that court would be subject to the grant of leave to sue in accordance with Rule 18 of the High Court Rules, as applied, by extension, to the practice and procedure of the Supreme Court.
That being so, it would be highly illogical and irregular if a suit instituted in the High Court, against a judge of the Supreme Court, were to be excluded from the protective ambit of Rule 18 of the High Court Rules.
Having regard to the purpose underlying Rule 18 of the High Court Rules, viz. to shield and safeguard judges against frivolous or vexatious litigation, it seems to me, that, the Rule must perforce be extended and construed so as to embrace and protect all judges of the superior courts, in addition to judges of the High Court, irrespective of the court in which they may be sued.
At the relevant time, the fourth to the eighteenth respondents in the proceedings a quo were substantive judges of either the Supreme Court or the High Court.
It follows that Rule 18 of the High Court Rules would have been applicable to any “summons or other civil process…, sued out against” the second and third respondents as well as the fourth to the eighteenth respondents in the proceedings a quo.
Counsel for the fourth and fifth respondents defends the stance taken by the third respondent, qua applicant a quo, and the position adopted by the court a quo in that regard.
He submits, that, an application made under section 85 of the Constitution does not require leave to sue any judge in terms of Rule 18 of the High Court Rules. He relies for this proposition on the decision in Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (SC).
Rule 18 of the High Court Rules is designed to avoid frivolous or vexatious suits against sitting judges or the President and this aspect, so he argues, is already catered for in section 85 of the Constitution.
Counsel for the fourth and fifth respondents accepts, that, the court a quo did not address or consider whether the citation of the judges was frivolous or vexatious. However, so he contends, the consideration of that question was not necessary or relevant given the relief that was sought from the High Court.
As against this, Mr Zhuwarara, the amicus curiae, distinguishes the decision in Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (SC) on the basis, that, the judgment in that case did not relate to section 85 of the Constitution but turned on the absence of any equivalent to Rule 18 of the High Court Rules in the Supreme Court Rules that were in force at that time.
He submits, that, the rationale behind Rule 18 of the High Court Rules is to protect the President and sitting judges against frivolous and vexatious proceedings.
He further relies upon Nicolle v Minister of Lands & Anor 2003 (1) ZLR 280 (H) for the submission, that, the intention behind Rule 18 is that leave to sue must be sought and obtained first before proceedings are filed for substantive relief against a judge.
Before valid proceedings could eventuate in the matter a quo, it was imperative that a separate application be instituted beforehand to obtain leave to sue the judges concerned.
Consequently, the decision of the court a quo was a nullity because the court proceeded without regard to Rule 18 of the High Court Rules, and, therefore, lacked the necessary jurisdiction to deal with the matter.
This renders the proceedings a quo susceptible to summary negation by this Court for want of jurisdiction.
Accordingly, so it is argued, there is no need for this Court to relate to the merits of the present disputation.
As there were no valid proceedings a quo, it follows, that, the constitutional issues therein were improperly determined. Therefore, this Court, employing its supervisory review powers, should set aside the impugned orders a quo and substitute them with an order dismissing the application for want of leave to institute proceedings.
Counsel for the applicant agrees, that, the court a quo misdirected itself in finding that Rule 18 of the High Court Rules does not apply to applications but only to actions by way of summons. This was contrary to the rationale of Rule 18.
Although the court took the view that the judges were sued in their official capacity, the substance of the suit was against the judges in their personal capacity. Consequently, the proceedings a quo were a nullity for want of jurisdiction.
Nevertheless, counsel for the applicant submits, that, the matter should not end there.
This is because the substance of the present proceedings is fundamental to the integrity of the Constitution and the meaning of section 186(4) of the Constitution must be pronounced upon.
Because of the effect of the orders a quo on the application of section 186(4) of the Constitution, there must be a decision by this Court to ensure finality in this matter.
This is so despite the nullity of the proceedings a quo.
As I have explained earlier, the court a quo rejected the objection to its assumption of jurisdiction on three grounds:
(i) That Rule 18 of the High Court Rules did not apply to applications;
(ii) That there was no requirement for leave to sue to be granted in applications under section 85 of the Constitution; and
(iii) That the respondents in question were cited in their official capacities only.
For the reasons set out below, I am of the view, that, the court a quo manifestly misdirected itself in all three respects.
Dealing, firstly, with the last aspect, there can be no doubt that the second to the eighteenth respondents a quo were cited nomine officio, i.e. in their official capacities.
However, it is equally evident that those respondents were cited on the basis, that, they would or might benefit personally, either immediately or in the indeterminate future, from the amendments to section 186 of the Constitution.
In any event, the court a quo nonetheless proceeded to issue two distinct declarators:
(a) The first declared, that, the second respondent, the incumbent Chief Justice, ceased to hold office by operation of law.
(b) The second declared, that, the extension of judicial tenure provided for in section 186 of the Constitution did not apply to the second to the fourteenth and the eighteenth respondents. (The exclusion of the fifteenth, sixteenth and seventeenth respondents from the latter declaratur appears to have been premised on the finding, that, they were High Court judges who were “just acting judges” of the Constitutional Court and/or the Supreme Court).
It is abundantly clear, that, the substantive impact of both declarators had a definitive impact on the rights and interests of the respondents in question.
Accordingly, although they were cited in their official capacities, they were substantively affected by the orders of the court a quo in their personal capacities. This serves to fortify the point, that, leave to sue them should have been obtained before they were cited in the proceedings a quo.
As regards the scope of Rule 18 of the High Court Rules, the court a quo patently mis-interpreted the provisions of that Rule.
There is absolutely nothing in the wording of Rule 18, or any other Rule, to justify the purported distinction between actions by way of summons on the one hand and suits by way of application on the other.
Nor is there anything in Rule 18 of the High Court Rules to support the curtailment of the obvious breadth of the phrase “other civil process” so as to exclude applications from its scope of coverage.
This finding is reinforced by having regard to the rationale behind the Rule, to wit, to shield the Head of State as well as judges from being harassed by frivolous or vexatious claims: see Gluck v The Governor 1947 SR 143…, cited with approval in Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (SC)…,.
This is an aspect that the court a quo pointedly overlooked in determining the preliminary objection before it.
It thereby failed to properly exercise its discretion in the matter.
If it had applied its mind to the question, it would undoubtedly have found, that, the blanket citation of all the sitting judges of the Constitutional Court and Supreme Court was nothing less than deliberate and gratuitous vexation.
I now turn to examine the proposition which was advanced by the applicants a quo, and endorsed by the court a quo, to the effect, that, there is no requirement for leave to sue to be granted in an application made in terms of section 85 of the Constitution.
The judgment of the full bench of the Supreme Court in Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (SC) appears to support this position.
In considering the provisions of section 24 of the former Constitution (the precursor to section 85 in the current Constitution), GUBBAY CJ stated as follows…,.:
“The fundamental purpose behind section 24(1) of the Constitution is to afford anyone who has lawful cause for complaint to come directly before the Supreme Court. Yet, the right to do so is subject to certain in-built limitations.
First, where the question as to a contravention of the Declaration of Rights was not referred by the High Court, or a court subordinate to the High Court, in terms of section 24(2), no application for the determination of such question will lie to the Supreme Court under subsection (1).
Second, the Supreme Court, in the exercise of its original jurisdiction, may, by virtue of section 24(4)(a), determine, without a hearing, any such application, which, in its opinion, is merely frivolous or vexatious….,.
This stricture is a sufficient protection against the possibility of harassment being caused to the cited respondent. Where, therefore, the relief claimed is against the office of the President, the aim of Rule 18 is recognised and implemented in subsection (4)(a).
Third, in accordance with the proviso to section 24(4), the Supreme Court may, in the exercise of its discretion, decline to entertain an application under section 24(1), or a referral under section 24(2), if satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under other provisions of the Constitution or under any other law….,. This is precisely the same consideration material to an application for leave under Rule 18.”
The first inbuilt limitation referred to above is not directly relevant in casu, but, the second and third limitations are obviously pertinent.
They demonstrate, that, section 24(4) of the former Constitution contained specific safeguards against any direct application that was merely frivolous or vexatious or which could be resolved through the availability of other adequate means of redress. These safeguards rendered it unnecessary to invoke Rule 18 of the High Court Rules or any equivalent provision in any matter involving an application made under section 24(1) of the Constitution.
Turning to section 85 of the current Constitution, one finds, that, it does not incorporate any similar safeguards against applications that are afflicted with frivolity or vexatiousness or which are susceptible to resolution through alternative remedies.
What this means is that the application of Rule 18 of the High Court Rules, or any other equivalent, is not rendered unnecessary or redundant in the context of section 85 of the Constitution.
Therefore, the contention that there is no need for leave to sue in an application in terms of section 85 of the Constitution, because it is already catered for in that provision, is patently erroneous.
It follows, that, the decision in Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (SC), predicated on a provision which is materially different in certain respects from the present section 85 of the Constitution, is clearly distinguishable and inapplicable in casu.
