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Constitutionality of Statutory Provisions and Conduct re: Approach, Declaration and Confirmation Proceedings

HH321-14 : FORTUNATE CHIOKOYO vs RICHARD NDLOVU and CHARLES SIMBI and CHIEF ELECTIONS OFFICER (ZEC) and REGISTRAR GENERAL OF VOTERS
Ruled By: UCHENA J

It is true that section 2(1) of the New Constitution invalidates the provisions of any law which is inconsistent with the provisions of the Constitution which is the supreme law of Zimbabwe. Section 2(1) of the Constitution of Zimbabwe provides as follows; “(1) This Constitution is the supreme law of Zimbabwe and any law, practice, ...
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CC03-14 : ZIMBABWE ELECTORAL COMMISSION and CHAIRPERSON OF THE ZIMBABWE ELECTORAL COMMISSION vs COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE AND OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA, and CHIWESHE AJA

THE PRESUMPTION OF CONSTITUTIONALITY It appears to me, however, that on a proper construction of section 81B of the Electoral Act [Chapter 2:18], no conflict exists. One commences the process of interpretation of the provision with the presumption of constitutionality. Every statute is presumed to be constitutional, that is to say, the Legislature is presumed to have ...
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CC11-15 : ARTHUR MUTAMBARA vs THE ATTORNEY GENERAL OF ZIMBABWE and COMMISSIONER GENERAL OF POLICE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and MAVANGIRA AJCC

The applicant bore the onus to prove his case, and it was incumbent upon him to discharge it. This point was reiterated in Retrofit (Private) Limited v Posts and Telecommunications and Anor 1995 (2) ZLR 199 (S) thus; “From a procedural aspect, the onus is on the challenger to establish that the enactment under ...
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CC12-15 : LOVENESS MUDZURU and RUVIMBO TSOPODZI vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS N.O and MINISTER OF WOMEN'S AFFAIRS, GENDER & COMMUNITY DEVELOPMENT and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

It is not necessary for a person challenging the constitutional validity of legislation to vindicate public interest on the ground that the legislation has infringed, or infringes, a fundamental human right, to give particulars of a person or persons who suffered legal injury as a result of the alleged unconstitutionality of the legislation. Section ...
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SC21-15 : ROLAND WHITEHEAD vs REGISTRAR GENERAL OF CITIZENSHIP and CO-MINISTERS OF HOME AFFAIRS and MINISTER OF JUSTICE AND LEGAL AFFAIRS and ANOTHER
Ruled By: ZIYAMBI JA, GARWE JA and GUVAVA JA

WHETHER APPELLANT IS A CITIZEN UNDER THE CONSTITUTION It is clear that the argument by the first respondent overlooks the fact that there is a new Constitution in force and that new rights have been created by the Constitution. The argument also seems oblivious of the fact that any existing law that is inconsistent with ...
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CC09-16 : BENARD WEKARE and MUSANGANO LODGE (PVT) LTD t/a MUSANGANO LODGE vs THE STATE and THE ATTORNEY GENERAL OF ZIMBABWE and ZIMBABWE BROADCASTING CORPORATION
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

The Zimbabwe Broadcasting Corporation said that the revenue collected from members of the public as listener's licence fees is used for the benefit of the public. It revealed that the money is channeled towards ensuring that all parts of the country have access to television and radio programmes that meet the interests of different ...
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CC04-17 : JABULANI SIBANDA vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and MAVANGIRA AJCC

MINISTER NOT CITED Moreover, the Minister, under whose administration the Act is assigned, must be a party to the proceedings. How can this court grant the relief sought that section 33(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is unconstitutional without hearing the Minister charged with the administration of the Act, ...
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CC13-17 : IN RE: PROSECUTOR-GENERAL OF ZIMBABWE ON HIS CONSTITUTIONAL INDEPENDENCE AND PROTECTION FROM DIRECTION AND CONTROL vs x
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, MAVANGIRA JCC and UCHENA JCC

Furthermore…, there is a presumption of constitutionality as regards any law that has not been challenged for alleged unconstitutionality. Had the applicant approached this Court challenging the constitutionality of sections 13 and 16 of the Criminal Procedure and Evidence Act [Chapter 9:07], he would have been afforded the opportunity to rebut that presumption by showing ...
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CC10-14 : DOUGLAS TAYLOR-FREEME vs THE SENIOR MAGISTRATE, CHINHOYI and THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

An enactment that creates a criminal offence has to be sufficiently clear and precise to be constitutional.
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SC111-04 : ASSOCIATED NEWSPAPERS OF ZIMBABWE (PRIVATE) LIMITED vs THE MINISTER OF STATE FOR INFORMATION AND PUBLICITY and MEDIA AND INFORMATION COMMISSION and THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, CHEDA JA, ZIYAMBI JA, MALABA JA and GWAUNZA JA

When an applicant seeks to impugn a statutory provision the nature of the challenge should be set out in some detail. In particular, the application should set out the manner in which it is alleged that the offending provisions violate the applicant's constitutional rights. If this is not done, respondents will have difficulty ...
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HHMA08-16 : TAVONGA SHAVA vs THE STATE
Ruled By: MAFUSIRE J

The referral of a matter to the Constitutional Court for a declaration of constitutional invalidity is now governed by the Constitutional Court Rules that were published under S.I.61 of 2016. In terms or Rule 24 thereof, a subordinate court wishing to refer an issue to the Constitutional Court for a final declaration of constitutional ...
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HHH409-15 : THE STATE vs WALTER MUFEMA and CALLINGTON CHAVHUNDUKA and TAFADZWA RUZVIDZO and CLAUDIOS BAUNDI
Ruled By: MAFUSIRE J and TSANGA J

Section 167(3) of the new Constitution provides that it is the Constitutional Court that makes the final decision whether, among other things, an Act of Parliament is unconstitutional. It is that court that must confirm any order of constitutional invalidity made by another court before that order has any force. That an order concerning the ...
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HB57-16 : HAMUTENDI KOMBAYI and OTHERS vs MINISTER OF LOCAL GOVERNMENTand PROVINCIAL ADMINISTRATOR, MIDLANDS PROVINCE and DR LUCKSON CHIKUMBIRIKE NO. and MR G. N KHOSA NO. and NICHOLAS MOYO NO.
Ruled By: BERE J

The supremacy of the Constitution of the Republic finds expression in the preamble to the Constitution which reads as follows:“Supremacy of ConstitutionThis constitution is the Supreme Law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency” Section 2 of the Constitution of ...
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HH546-15 : ANNIE MADZARA vs STANBIC BANK ZIMBABWE LTD and CLEVER MADZARA and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS and THE ATTORNEY GENERAL OF ZIMBABWE
Ruled By: TSANGA J

Counsel for the applicant further espoused that litigants have a duty to test the legality of laws and that what the applicant seeks is to test the legality of the common law rule in light of the Constitution. He argued that whether Parliament decides to pass a law or not would be another matter….,. Locating the applicant's problem... ...
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CC09-18 : DEMOCRATIC ASSEMBLY FOR RESTORATION AND EMPOWERMENT and OTHERS vs NEWBERT SAUNYAMA N.O. and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS and ANOR
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and BHUNU JCC

The test to determine whether a law infringes a fundamental right was laid out by GUBBAY CJ in In re: Munhumeso and Ors 1994 ZLR 49 (S)…, as follows: “The test in determining whether an enactment infringes a fundamental freedom is to examine its effect and not its object or subject matter. If the effect of the impugned ...
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CC09-18 : DEMOCRATIC ASSEMBLY FOR RESTORATION AND EMPOWERMENT and OTHERS vs NEWBERT SAUNYAMA N.O. and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS and ANOR
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and BHUNU JCC

Section 175(6)(b) permits a court declaring a law to be inconsistent with the Constitution to suspend the declaration of invalidity to allow the competent authority to correct the defect. It is just and equitable, in my view, that the second (Commissioner General of Police) and third (the Minister of Home Affairs) respondents be allowed time to attend to the defects ...
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Appealed
SC46-18 : CITY OF HARARE vs TAWANDA MUKUNGURUTSE and PATRICK CHIKOHORA and CLEDWYN MUTETE and MINISTER OF LOCAL GOVERNMENT PUBLIC WORKS AND NATIONAL HOUSING
Ruled By: GARWE JA, GUVAVA JA and ZIYAMBI AJA

The matter turns on a determination of the question at what stage does the invalidity of existing legislation inconsistent with the Constitution of Zimbabwe occur. The appellants contend that an invalidity occurs when it is pronounced as such by a court. The respondents maintain that the invalidity occurred upon the coming into effect of the Constitution. BACKGROUND On the 19th of ...
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HH27-18 : SAMSON MEKI vs AIR ZIMBABWE (PVT) LTD and AIR ZIMBABWE HOLDINGS (PVT) LTD and COMMERCIAL BANK OF ZIMBABWE LTD
Ruled By: HUNGWE J

The third point in limine was that section 5(2) of the State Liabilities Act [Chapter 8:14] is unconstitutional as it deprives the applicant of the right to property.The argument requires me to make a finding of constitutional invalidity of an Act of Parliament and immediately act on it. This is ...
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HH172-17 : TENDAI MANGWIRO vs MINISTER OF JUSTICE & LEGAL AFFAIRS (N.O.) and MINISTER OF HOME AFFAIRS (N.O) and ATTORNEY-GENERAL OF ZIMBABWE (N.O.)
Ruled By: MUSHORE J

It is my considered view that a court should never shirk its responsibility in doing all that is necessary in making judicial law. In Poindexter v Greenhow 114 US 270 (885) (cited in Nyathi v MEC for Department of Health, Gauteng 2008 (5) SA (CC)), the following observation was made with respect to State immunity and a democratic ...
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Appealed
HHH718-14 : THE STATE vs WILLARD CHOKURAMBA
Ruled By: MAWADZE J and MUREMBA J

In terms of section 167(3) and section 175(1) of the new Constitution it is the Constitutional Court which makes the final decision on whether an Act of Parliament is constitutional. Any order of constitutional invalidity of any law that is made by another court, other than the Constitutional Court, has no force unless it is confirmed ...
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CC10-19 : THE STATE vs WILLARD CHOKURAMBA (JUSTICE FOR CHILDREN'S TRUST INTERVENING AS AMICUS CURIAE and ZIMBABWE LAWYERS FOR HUMAN RIGHTS INTERVENING AS AMICUS CURIAE)
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, HLATSHWAYO JCC, MAVANGIRA JCC, BHUNU JCC, UCHENA JCC and MAKONI AJCC

Under the Constitution, the Constitutional Court is the only tribunal with the power to make a final and binding decision on the question of the constitutionality of an Act of Parliament or conduct of the President or Parliament. An order concerning the Constitutional invalidity of a law or conduct of the President or Parliament made by another ...
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CC07-14 : MAYOR LOGISTICS (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MALABA DCJ

Any court faced with an application challenging the constitutionality of a statutory provision is required to proceed on the presumption that the legislation is constitutionally valid until the contrary is clearly established….,. The legal consequences of a decision by the Constitutional Court that a law, a regulation or some of their provisions, are unconstitutional are that they lose ...
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HH181-16 : MICHAEL NYIKA and CRISPEN TOBAIWA 1 vs MINISTER OF HOME AFFAIRS 2 and COMMISSIONER GENERAL, POLICE N.O. and INSPECTOR DAMBURAI and CONSTABLE LISBORNE CHIBANDA
Ruled By: TSANGA J

Section 175(1) of the Constitution provides that where a court makes an order concerning the constitutional invalidity of any law, such order has no force and effect unless it is confirmed by the Constitutional Court. Furthermore, in terms of section 175(2), a court which makes a finding of constitutional invalidity of a law may grant ...
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HH181-16 : MICHAEL NYIKA and CRISPEN TOBAIWA 1 vs MINISTER OF HOME AFFAIRS 2 and COMMISSIONER GENERAL, POLICE N.O. and INSPECTOR DAMBURAI and CONSTABLE LISBORNE CHIBANDA
Ruled By: TSANGA J

It is at the everyday level that most ordinary citizens often experience abuse of power as opposed to the abuse coming from those at the highest levels. It is therefore vital that as courts we do not confine our sense of vigilant scrutiny of constitutionally deficient legislation to only those issues often brought by political ...
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CC01-19 : ZIMBABWE LAW OFFICERS ASSOCIATION and DERECK CHARAMBA vs NATIONAL PROSECUTING AUTHORITY and PROSECUTOR GENERAL N.O. and MINISTER OF JUSTICE N.O. and COMMISSIONER GENERAL OF POLICE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and MAVANGIRA AJCC

Section 175(6)(b) of the Constitution allows the Court to grant “appropriate relief” in any case that has been placed before it and to suspend the condition of invalidity for any period to allow the competent authority to correct the defect.
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CC02-18 : GREATERMANS STORES (1979) PL t/a THOMAS MEIKLES STORES and MEIKLES HOSPITALITY PL vs THE MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE ATTORNEY-GENERAL
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and UCHENA JCC

Section 3(2)(k) of the Constitution provides that it is a principle of good governance which binds the State and all institutions and agencies of Government at every level that there be “due respect for vested rights.”…,. The principle of due respect for vested rights under section 3(2)(k) of the Constitution does not prohibit retrospective civil legislation because it ...
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CC02-18 : GREATERMANS STORES (1979) PL t/a THOMAS MEIKLES STORES and MEIKLES HOSPITALITY PL vs THE MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE ATTORNEY-GENERAL
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and UCHENA JCC

As with any law, retrospective legislation enjoys a presumption of constitutionality. The challenger bears the burden of proving that the retrospective legislation violates the protection of the fundamental human right or freedom guaranteed to him or her or it by the Constitution. If infringement is established and the right or freedom is derogable, the State has ...
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CC02-18 : GREATERMANS STORES (1979) PL t/a THOMAS MEIKLES STORES and MEIKLES HOSPITALITY PL vs THE MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE ATTORNEY-GENERAL
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and UCHENA JCC

As with any law, retrospective legislation enjoys a presumption of constitutionality. The challenger bears the burden of proving that the retrospective legislation violates the protection of the fundamental human right or freedom guaranteed to him or her or it by the Constitution. If infringement is established and the right or freedom is derogable, the State has ...
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SSC71-19 : PRISCAH MUPFUMIRA vs THE STATE
Ruled By: GOWORA JA

For purposes of completeness, I must comment on the decision of the court a quo to declare section 32(3b) and (3c) of the Criminal Procedure and Evidence Act [Chapter 9:07] unconstitutional. This was an issue that was not brought before the court a quo for determination. An attempt to seek a declaration as to the constitutionality of ...
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HH180-16 : DR JABULANI KUCHENA vs THE SCIENTIFIC AND INDUSTRIAL RESEARCH AND DEVELOPMENT CENTRE
Ruled By: CHIGUMBA J

Section 10 of Part 4 of the Sixth Schedule of the current Constitution (saving and transitional provisions) provides that all existing laws will continue in force but must be construed in conformity with the Constitution. In my view, this means that any inconsistency between the current Constitution and an existing law must be resolved in favour of conformity ...
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HH211-15 : NETONE CELLULAR PL vs THE MINISTER OF PUBLIC SERVICE LABOUR AND SOCIAL WELFARE and NATIONAL EMPLOYMENT COUNCIL FOR THE COMMUNICATIONS AND ALLIED SERVICES INDUSTRY
Ruled By: MAKONI J

The applicant approached this court seeking the following relief:“IT IS DECLARED AS FOLLOWS:1. The application to the Applicant of the provisions of a collective bargaining agreement born of a process to which the Applicant was not party is a violation of the Applicant's constitutional right to freedom of association.2. The ...
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CC04-20 : INNOCENT GONESE and JESSIE MAJOME vs PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY and PRESIDENT OF THE SENATE and EMMERSON MNANGAGWA N.O. and PRESIDENT OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and BHUNU JCC

Section 175(6) of the Constitution provides as follows:“(6) When deciding a constitutional matter within its jurisdiction a court may —(a) Declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of the inconsistency;(b) Make any order that is just and equitable, including an ...
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SSC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X
Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

From a procedural aspect, the burden of proof is on the challenger to establish that the impugned law goes further than is reasonably justifiable in a democratic society; and not, as is common with the Constitutions of other countries, upon the State to show that it does not: see Zimbabwe ...
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HH36-08 : MASIMBA KUCHERA and MICHAEL MUZA and TAFADZWA RUGOHO vs MINSTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GUVAVA J

In this case, I also note that the applicant has raised serious concerns relating to the use of the Presidential Powers (Temporary Measures) Act and the constitutionality of the provisions enacted in both the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 and the ...
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Appealed
SC01-21 : BERNARD MARANGE vs ZVIDZAI MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION AND PRESERVATION OF NATIONAL CULTURE AND HERITAGE and PRESIDENT OF ZIMBABWE
Ruled By: GWAUNZA DCJ, PATEL JA and BERE JA

Paragraph 10 of the Sixth Schedule to the Constitution...,, dictates the continuation in force of all existing laws to be construed in conformity with the Constitution.
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HH557-17 : ZVIDZAI MARANGE vs BERNARD MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION and PRESERVATION OF NATIONAL CULTURE and HERITAGE and PRESIDENT OF ZIMBABWE
Ruled By: MANGOTA J

The Constitution is the supreme law of Zimbabwe. Any law, practice, custom or conduct which is inconsistent with it is invalid to the extent of the inconsistency. The doctrine of supremacy of the Constitution is sacrosanct. It is immutable.
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HH37-16 : GEORGINA NJODZI vs LORRAINE MATIONE
Ruled By: MWAYERA J

Section 2(1) of the Constitution of Zimbabwe..., reads:“This Constitution is the supreme law of Zimbabwe and any law, practice, custom or contract inconsistent with it is invalid to the extent of the inconsistency. The obligation imposed by this Constitution are binding on every person, natural or juristic, including the State ...
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Appealed
HH287-20 : PENELOPE STONE and RICHARD BEATTIE t/a THE STONE/BEATTIE STUDIO vs CENTRAL AFRICAN BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT
Ruled By: ZHOU J

The Constitution of Zimbabwe enshrines the principle of constitutional supremacy, firstly, as a rule in section 2, and, secondly, as one of the founding values and principles upon which the Republic is founded in section 3.The other “founding values and principles enshrined” include the rule of law, fundamental human rights ...
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SC30-17 : ALLIANCE INSURANCE vs IMPERIAL PLASTICS (PRIVATE) LIMITED and THE HONOURABLE JUDGE L.G. SMITH (RTD) N.O.
Ruled By: MALABA DCJ, MAVANGIRA JA and UCHENA JA

Before addressing the question for determination, it is prudent to highlight why the Court was of the view that the first ground of appeal was improperly before it.The ground of appeal…, states that Article 34 of the Arbitration Act [Chapter 7:15] is unconstitutional, as it fails to uphold the right ...
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SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION
Ruled By: GOWORA JA, PATEL JA and UCHENA JA

It is pertinent to point out, that, for every law that is gazetted there is a presumption of validity..., and the validity thereof cannot be questioned through an application for an interdict....,.The court, in Mayor Logistics v ZIMRA CC07-14, at page 11 of the cyclostyled judgment, went on to say:“There ...
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SC180-20 : AIR ZIMBABWE (PRIVATE) LIMITED vs J.V. MATEKO and ELIJAH CHIRIPASI and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

In Willmore Makamure v Minister of Public Service, Labour and Social Welfare (2) Attorney General of Zimbabwe CC01-20, dealing with the confirmation proceedings in declarations of invalidity of a law or conduct of the President or Parliament, the Constitutional Court noted that:“Confirmation proceedings are in the nature of a review. ...
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CC06-20 : ISOQUANT INVESTMENTS (PRIVATE) LIMITED t/a ZIMOCO vs MEMORY DARIKWA
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and BHUNU JCC

Statutory ambiguity or vagueness is a matter of interpretation of the statute. It is not a matter of constitutional validity of the statute concerned.
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CC05-16 : PITTY MPOFU and SAMUKELISIWE MLILO vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

The right to protection of the law entails that the law be expressed in clear and precise terms to enable individuals to conform their conduct to its dictates. A law may not be so widely expressed that its boundaries are a matter of conjecture nor may it be so vague ...
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HH99-18 : C F (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

The test of constitutionality of an enactment is not measured against absolute rights.I intimated in CRS (Pvt) Ltd v Zimbabwe Revenue Authority HH728-17…, that, in our law, the test of constitutionality of an enactment is measured against the provisions of section 86(2) of our Constitution.That provision allows the enactment of ...
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CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

Section 2 of the Constitution..., provides:“2 Supremacy of Constitution(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including ...
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Appealed
CC01-20 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, MAKONI JCC and BERE JCC

After hearing submissions by counsel in the application, the Court made the following order by consent:“IT IS ORDERED BY CONSENT THAT:1. The order of the court a quo, given in terms of section 175(1) of the Constitution, declaring section 93(5a) of the Labour Act [Chapter 28:01] to be in conflict ...
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Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

MAKARAU JCC:This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by ...
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Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

What must be borne in mind is that the respective positions and contentions of the parties, in confirmation proceedings, do not constitute any valid limitation to the wide and relatively unfettered review jurisdiction conferred upon this Court by the provisions of section 175 of the Constitution.As was appositely observed in ...
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Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

There can be no doubt, that, in terms of section 175(1) of the Constitution, the High Court, as a subordinate court, is perfectly competent to make an order of constitutional invalidity. However, any such order will have no force or effect unless it is confirmed by this Court.This is because ...
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CC03-22 : DIANA KAWENDA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HEALTH AND CHILD CARE and THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MAKARAU JCC, HLATSHWAYO JCC and PATEL JCC

On 20 January 2020, the High Court dismissed with costs, an application to that court by the appellant and another who is not before us, challenging the constitutional validity of the law that governs the age at which children can consent to sexual activities.This is an appeal against that order.BackgroundThe ...
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