This is an application lodged in terms of Rule 32 of the Constitutional Court Rules 2016, for leave to appeal against the whole judgment of the Supreme Court (the court a quo) handed down on 14 January 2022 as Judgment SC01-22.
The decision of the court a quo had dismissed the applicant's appeal against the judgment of the High Court in Case No. HC2302/20.
The Background
The applicant is a former judge of the Supreme Court. He has cited seven respondents in all. The first respondent is the Judicial Service Commission. The second, third, and fourth respondents (Simbi Veke Mubako, Rekayi Maposa and Takawira Nzombe) were the members of a Tribunal that was established to inquire into the question of the applicant's removal from judicial office. The fifth respondent (Virginia Mabhiza) was the Secretary of that Tribunal. The sixth respondent is the President of Zimbabwe, while the seventh respondent is the Minister of Justice, Legal and Parliamentary Affairs.
Both the sixth and seventh respondents are cited in their official capacities.
On 3 March 2020, the applicant was suspended from judicial office following the appointment of the aforementioned Tribunal by the sixth respondent (hereinafter “the President”). The Tribunal was established to consider the applicant's suitability to hold the office of a judge. The suspension was pursuant to a resolution by the first respondent (hereinafter “the JSC”) made on 13 December 2019 to refer the question of his removal from office to the President.
The applicant was dissatisfied with the manner in which his case had been referred to the President.
Consequently, on 13 May 2020, he filed an application in terms of section 4 of the Administrative Justice Act [Chapter 10:28] alleging, that, the Judicial Service Commission (JSC) had failed to comply with section 3(1)(a) of the Administrative Justice Act by failing to act lawfully, reasonably, and in a fair manner when it gave advice to the President, in terms of section 187(3) of the Constitution.
The High Court dismissed the application before it with costs in favour of the Judicial Service Commission (JSC). The court found that the question of the applicant's alleged gross misconduct was a matter for the Tribunal to determine.
On appeal to the Supreme Court, the applicant raised five grounds of appeal, which are largely replicated in the intended grounds of appeal to this Court in the event that the instant application for leave to appeal is granted.
The Supreme Court upheld the finding of the High Court, that, the deponent to the Judicial Service Commission's opposing affidavit was lawfully authorised to do so. The court a quo also upheld the finding of the High Court, that, the applicant had failed to prove that the JSC was inquorate and functus officio at its meeting held on 13 December 2019. Lastly, the court held, that, the applicant's right to be heard had not been violated.
In the event, the court dismissed the applicant's appeal with no order as to costs.
The intended appeal before this Court is predicated on the assertion, that, the court a quo erred by avoiding an in-depth determination of various constitutional issues before it, despite having been alive to those issues.
The applicant accordingly asserts, that, the question of whether or not there was a constitutional matter before the court a quo must be answered in the affirmative. He further avers that the intended appeal to this Court does enjoy prospects of success.
The intended grounds of appeal
As paraphrased, the intended five grounds of appeal asseverate that the court a quo erred and thereby misdirected itself in the following respects:
(i) In determining that the appeal was moot when the challenge to the referral by the Judicial Service Commission (JSC), under section 187(3) of the Constitution, was that it was unconstitutional.
(ii) In not finding, that, any person who was not a member of the Judicial Service Commission (JSC) was prohibited from representing it in any application pursuant to section 187(3), and, consequently, in not finding that the JSC was not properly before the High Court.
(iii) In not finding that section 344 of the Constitution places the onus to prove that it had a quorum on the Judicial Service Commission (JSC) and not on the appellant.
(iv) In not finding that section 187(3) of the Constitution requires the Judicial Service Commission (JSC) to grant a judge the full scope of the audi alteram partem rule before sending its advice to the President.
(v) In not finding that the Judicial Service Commission (JSC) is required to determine the existence or otherwise of the jurisdictional facts under section 187(3) before sending its advice to the President.
The applicant avers that the foregoing grounds of appeal enjoy prospects of success for a number of reasons:
(i) As regards the first ground, he contends, that, mootness does not arise when a thing is void for being unconstitutional.
(ii) On the second ground, he states, that, the Constitution does not permit the Judicial Service Commission (JSC) to delegate to its Secretary the critically important duty of defending in court its advice to the President under section 187(3) of the Constitution.
(iii) With respect to the third ground, he argues, that, section 344 of the Constitution would be undermined if a constitutional body is not obliged to prove that it had a quorum and that the independence of the judiciary would be threatened by the possibility of an inquorate Judicial Service Commission (JSC) proceeding in terms of section 187(3) of the Constitution.
In relation to the fourth and fifth grounds, he avers, that, a rigorous process preceding the tendering of advice in terms of section 187(3) of the Constitution requires the full scope of the audi alteram partem rule and a finding by the Judicial Service Commission (JSC) on the existence of the jurisdictional facts contemplated in section 187(1) of the Constitution.
(iv) Lastly, the applicant asserts, that, the intended appeal is of public importance because it is central to the independence of the judiciary. He contends, that, the position of this Court on the issues raised will clarify the law and protect the Constitution.
In the premises, he prays for an order for leave to appeal to be granted.
The Judicial Service Commission (JSC), through an affidavit deposed to by its Secretary, firmly opposes the instant application.
It denies that there are any constitutional issues or matters to be decided as contemplated by Rule 32(2) of the Rules. It also asserts, that, the issues that were before the court a quo were resolved on non-constitutional bases. It further disputes the argument, that, it is in the public interest to grant leave to appeal. It is contended that the application does not satisfy the requirements for leave to appeal under Rule 32 of the Constitutional Court Rules.
The sixth and seventh respondents (President of Zimbabwe and the Minister of Justice, Legal and Parliamentary Affairs) also oppose the application through an affidavit deposed to by the seventh respondent.
In essence, it is averred, that, the court a quo did not decide any constitutional matter. Consequently, it is argued that the applicant has failed to show that his application has any prospects of success.
Both respondents pray that the application be dismissed with costs.
Applications for Leave to Appeal
Applications for leave to appeal to this Court are governed by Rule 32 of the Constitutional Court Rules. The requirements to be satisfied by an applicant seeking leave to appeal are now firmly established in the jurisprudence of the Court. They are as follows:
(i) The constitutional matter raised in the decision to be appealed against, and any other connected issues, must be clearly and concisely set out.
(ii) The applicant must intend to apply for leave to appeal against the decision of the subordinate court on a constitutional matter.
(iii) The applicant must demonstrate prospects of success on appeal.
(iv) The intended appeal must be in the interests of justice which are a paramount consideration.
See Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC)…,.; Muza M v Saruchera N.O. & Ors CC05-19; Bonnyview Estate (Pvt) Ltd v Zimbabwe Platinum Mine (Pvt) Ltd & Anor CC06-19; Ismail v St. Johns College & Ors CC19-19; TBIC Investments (Pvt) Ltd v Mangenje & Ors CC15-20; Rita Mbatha v National Foods CC06-21; Gift Konjana v Dexter Nduna CC09-21.
I shall address each of the above requirements ad seriatim in their application to the facts and circumstances of the present matter.
Clear and concise exposition of constitutional matter
The application in casu, at its outset, relates to the requirements of Rule 32(3)(c) of the Constitutional Court Rules and proceeds to set out “the constitutional matters raised in the decision sought to be appealed against.”
These matters tally with the five grounds of appeal delineated in the draft notice of appeal. They are further elaborated in the applicant's founding affidavit.
There can be no doubt, and this appears to be common cause, that the applicant has satisfied and complied with the requirements of Rule 32(3)(c) of the Constitutional Court Rules.
Decision appealed against on constitutional matter
The more difficult question that arises herein is whether or not the decisions of the High Court and the Supreme Court, being the decisions impugned in casu, bear upon any constitutional issue or matter.
Counsel for the applicant answers that question in the affirmative.
He submits, that, the relevant constitutional matters were raised, both in the High Court and before the Supreme Court. In support of his position, he refers to several passages in the applicant's founding affidavit before the High Court and in his heads of argument before both of the subordinate courts.
Counsel for the applicant further submits, that, the fact that the Supreme Court wrote its judgment without reference to these points is irrelevant.
He nevertheless accepts, that, the mere reference to a constitutional point, whether in the pleadings or in the judgment to be appealed against, is not sufficient to satisfy the requisite test.
He is absolutely correct in that respect: see Moyo v Sgt. Chacha & Ors CC19-17; Chani v Mwayera J & Ors CC02-20.
He also contends, much less persuasively so in my view, that a constitutional matter does not cease to be so simply because there is no reference to the Constitution itself.
It is necessary to pinpoint the relevant references adverted to by counsel.
In the founding affidavit in Case No. HC2302-20 at paragraph 12, the applicant avers, that, the President can only act under section 187(3) of the Constitution, if the advice given to him is lawful in compliance with section 3(1)(a) of the Administrative Justice Act. At paragraphs 55 and 56, the applicant asserts that no jurisdictional circumstances exist that would have entitled the Judicial Service Commission (JSC) to refer the matter to the President.
In particular, he avers that the JSC does not appear to have addressed its mind at all to the grounds for removal from judicial office prescribed by section 187(1) of the Constitution. He then argues, that, if the decision to refer the matter to the President was premised on facts incapable of sustaining any of the three grounds for the removal of a judge “such a decision was grossly unreasonable and irrational.”
At paragraph 57, the applicant attacks the decision of the Judicial Service Commission (JSC) to revisit his case on the basis of new allegations without having been availed an opportunity to consider and respond to those allegations. This was in violation of the audi alteram partem rule and “the dictates of natural justice.”
At paragraphs 63, 65 and 66, the applicant avers that the JSC was both inquorate and improperly constituted when it took the decision to refer his matter to the President and the subsequent decision to suspend him.
These decisions were made outside its constitutive instruments, in particular section 189 of the Constitution, and, therefore “liable to be set aside as being unlawful and grossly irregular.”
At paragraph 68, the applicant assails the failure of the Judicial Service Commission (JSC) to place before the High Court a record of its minutes and deliberations, in keeping with its mandate under section 191 of the Constitution to conduct its business in “a just, fair, and transparent manner.”
At paragraph 70, the applicant observes that the office of a judge is sacrosanct; and, at paragraph 77, he affirms the need for the JSC to protect its judges from unmeritorious attacks on their dignity and standing.
He then concludes that the JSC's advice to the President “was contrary to section 3(1)(a) of [the Administrative Justice Act] and thus null and void”. Accordingly “the subsequent acts of [the President are a nullity and must be set aside.”
Turning to the applicant's heads of argument in the High Court, paragraphs 2 to 4 address the point, that, the Judicial Service Commission (JSC) cannot delegate its constitutional duties, in particular, the defence of its conduct under section 187(3) of the Constitution, to its Secretary or Acting Secretary. The same point is addressed at paragraphs 2 to 7 of the applicant's heads of argument before the Supreme Court.
The applicant reiterates the argument that the JSC was not properly before the High Court, as the deponent to its opposing affidavit was prohibited by the Constitution from representing it in an application brought by a judge pursuant to section 187(3) of the Constitution.
At paragraphs 11 to 17, the applicant sets out his attack on the quorum of the Judicial Service Commission (JSC) at the meeting whereat it decided to refer his matter to the President under section 187(3) of the Constitution. Reliance is placed upon section 341(1) and (2) of the Constitution pertaining to the quorum of any constitutional body.
It is argued, that, the decision of the JSC “was unconstitutional, unlawful and null and void” and that, consequently, the onus to prove that it was quorate at the meeting in question shifted to and lay upon the JSC rather than the applicant.
At paragraphs 36 to 43, the applicant canvasses the alleged failure of the High Court to determine the existence or otherwise of the jurisdictional facts under section 187(1) of the Constitution warranting the referral of the applicant's case to the President in terms of section 187(3). It is argued, that, the actions of the JSC, under section 187(3) of the Constitution, are “clearly subject to review” and that “what was before the court a quo was a challenge to the prior administrative action of advising [the President] under section 187(3) of the Constitution.”
It is further argued that the failure of the Judicial Service Commission (JSC) to “indicate the ground under section 187(1) that is being “relied on” rendered “the action under section 187(3) unconstitutional, unlawful and null and void.”
Lastly, it is submitted that “section 187(1) requires [the JSC] to first reach the conclusion that there is a prima facie case…, before acting under section 187(3)” and that “to reach the prima facie verdict, [the JSC] must carry out an adjudicative process and set out reasons for its conclusions…, before invoking section 187(3).”
Counsel for the first respondent submits, that, the application before the High Court was clearly premised on the provisions of the Administrative Justice Act. The court was not seized with any specific constitutional challenge. In essence, so it is argued, the applicant did not file any constitutional matter before the High Court or the Supreme Court.
Consequently, the doctrines of subsidiarity and avoidance come into play. Additionally, leave to appeal is a very limited right, and, in the present case, there is no basis for appealing to this Court.
Counsel for the sixth and seventh respondents adopts the same stance.
He submits, that, the applicant did not directly impugn the conduct of the Judicial Service Commission (JSC) on any constitutional ground. He filed what was essentially an Administrative Law matter and he cannot deviate from that position. Furthermore, the applicant attacks the Supreme Court for not making various findings. This shows that there was no proper basis for that court to adjudge any constitutional matter.
It is further argued, that, references to the Constitution before the High Court and the Supreme Court were purely incidental and not directly relied upon. Such references were only ancillary and in support of section 3 of the Administrative Justice Act. Accordingly, both subordinate courts were correct in not dealing with the case as involving any constitutional matter.
In reply, counsel for the applicant argues, that, where a constitutional issue arises in any litigation, the court may deal with it, and, if it does address that issue, then a constitutional appeal must lie against its decision.
Moreover, a point raising a constitutional issue may be taken at any time....,.
In section 332 of the Constitution, a constitutional matter is defined as “a matter in which there is an issue involving the interpretation, protection, or enforcement of the Constitution.”
Accordingly, a constitutional matter arises where there is an issue in dispute raising questions of law, the resolution of which requires the interpretation, protection, or enforcement of the Constitution.
In South Africa, it is settled law that a constitutional matter cannot arise for the first time on appeal when it was not available or in existence in the subordinate court. This rule was stated as follows in Prince v President, Cape Law Society & Ors 2001 (2) SA 388 (CC)…,:
“Parties who challenge the constitutionality of a provision in a statute must raise the constitutionality of the provisions sought to be challenged at the time they institute proceedings. In addition, a party must place before the court information relevant to the determination of the constitutionality of the impugned provisions….,.
I would emphasise that all this information must be placed before the court of first instance….,.
It is not sufficient for a party to raise the constitutionality of a statute only in the heads of argument, without laying a proper foundation for such challenge in the papers or in the pleadings.
The other party must be left in no doubt as to the nature of the case it has to meet and the relief that is sought. Nor can parties hope to supplement and make their case on appeal.”…,.
Similarly, the established practice of this Court is that in order to determine whether or not there was a constitutional matter before the court a quo, the dispute must be traced back to the court of origin - in this case, the High Court: see Ismail v St. Johns College & Ors CC19-19…,.
