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) of the Constitution 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 respondents 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) of the Constitution 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.”…,.
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) of the Constitution, 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) of the Constitution 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).”…,.
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…, 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…, 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.
See also Mukoko v Commissioner General of Police & Others 2009 (1) ZLR 21 (S).
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 v A-G & Anor (1993) (1) ZLR 153 (S), 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 to 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)…,.;
“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.”…,.
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 non 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.”…,.
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;”…,.
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;
See also, among others, Rattigan v Chief Immigration Officer & Others 1994 (2) ZLR 54 (S); Capital Radio (Pvt) Ltd v Broadcasting Authority of Zimbabwe 2003 (2) ZLR 236.
“…, 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.”…,.
These remarks are echoed in the following summation by the learned author EA KELLAWAY 'Principles of Legal Interpretation - Statutes, Contracts and Wills' 1st Ed…,.;
“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) of the Constitution.
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) of the Constitution.
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) of the Constitution.
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 2006 (1) ZLR 148 (S) and Jesse v Attorney General 1999 (1) ZLR 121 (S)…, was a re-affirmation 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) of the Constitution 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 v A-G & Anor 1993 (1) ZLR 153 (S), 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 respondents 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.
