Before:
MALABA CJ, In Chambers
AN
APPLICATION FOR AN ORDER FOR LEAVE FOR DIRECT ACCESS TO THE
CONSTITUTIONAL COURT
This
is a chamber application for an order for direct access to the
Constitutional Court (“the Court”) in terms of Rule 21(2) of the
Constitutional Court Rules, SI 61 of 2016 (“the Rules”).
The
applicant intends to file the substantive application with the Court
in terms of section 85(1)(a) of the Constitution of Zimbabwe
Amendment (No. 20) Act 2013 (“the Constitution”).
The
substantive application the applicant intends to make in terms of
section 85(1)(a) of the Constitution, should leave for direct access
be granted, alleges that the decision of the Supreme Court dismissing
an appeal against a decision of the High Court upholding his
conviction and sentence of imprisonment for bribery violated his
right to a fair trial, enshrined in section 69(1) of the
Constitution.
The
applicant had to show that it is in the interests of justice for an
order for direct access to be granted.
FACTUAL
BACKGROUND
The
applicant was employed by the Zimbabwe Republic Police as the
Officer-In-Charge of Guruve Criminal Investigation Department. On 24
October 2014 he was arraigned before the Magistrate's Court facing
a charge of bribery, as defined in section 170(1)(a) of the Criminal
Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law
Code”). It was the respondent's case that on 03 April 2014 the
applicant unlawfully and intentionally received $200.00 from one
Biggie Chipfunde in order to influence investigations in a criminal
case involving the latter as an accused. The criminal case was
pending before the Magistrate's Court.
The
applicant denied the charge of bribery. He said that he received the
money from Biggie Chipfunde, genuinely believing that it was a
donation to a fundraising campaign.
After
a full trial, the applicant was convicted of bribery. He was
sentenced to twelve months' imprisonment, of which four months were
suspended for a period of five years on conditions of good behaviour.
The
applicant noted an appeal to the High Court against the conviction
and sentence. The grounds of appeal against conviction were that the
trial magistrate ignored glaring inconsistencies in the evidence of
the respondent's witnesses; that the respondent failed to prove its
case beyond a reasonable doubt; and that the authority to organise
entrapment had not been properly obtained.
The
ground of appeal against sentence was that a non-custodial sentence
was more appropriate given the circumstances of the case.
The
High Court upheld the conviction. The appeal against sentence was
also dismissed by the High Court.
The
applicant noted an appeal to the court a quo against the judgment of
the High Court. The court a quo found that the appellant's grounds
of appeal against conviction did not emanate from the High Court's
ratio decidendi. It held that no proper grounds of appeal had been
placed before it. The court a quo also upheld the sentence, after
finding no misdirection on the part of the High Court. The appeal was
dismissed in its entirety.
It
is against this background that the applicant filed the application
for leave for direct access to the Court. He alleged that the court a
quo breached his fundamental right to a fair trial.
The
contention was that the proceedings in the Magistrate's Court were
tainted with gross irregularities, which resulted in a substantial
miscarriage of justice. He alleged that the trial magistrate
“deliberately ignored analysing and evaluating the defence case and
its documentary exhibits which rebutted all essential averments in
the State case”.
The
applicant further alleged that the subsequent upholding of the trial
magistrate's decision by the High Court was irregular, as that
court relied on section 170(2) of the Criminal Law Code as the basis
for dismissing the appeal when the trial magistrate did not rely on
the provision in question to convict him.
He
alleged that section 170(2) of the Criminal Law Code is invalid. He
argued that the section is an unconstitutional provision which casts
a reverse onus on the applicant to prove his innocence, thereby
breaching section 70(1)(a) of the Constitution which guarantees an
accused person the right to be presumed innocent until proven guilty.
Lastly,
the applicant averred that the court a quo omitted to exercise its
review powers provided for under section 25(2) of the Supreme Court
Act [Chapter 7:13]. He contended that failure to exercise the powers
provided for by law was an infringement of his right to have the case
reviewed by a higher court, guaranteed under section 70(5)(a) of the
Constitution.
The
applicant averred that granting leave for direct access to the Court
would be in the interests of justice as it would vindicate his right
to a fair trial guaranteed under section 69(1) of the Constitution.
The
application was opposed by the respondent.
Mr
Makoto submitted that the court a quo properly evaluated the evidence
adduced by the State and concluded that the High Court had reached
the correct decision in dismissing the appeal against conviction and
sentence. The applicant was not happy with the manner in which the
evidence was assessed by the court a quo. That does not mean that the
decision of the court a quo is in violation of the applicant's
fundamental rights.
DETERMINATION
OF THE ISSUES WHETHER IT IS IN THE INTERESTS OF JUSTICE THAT LEAVE
FOR DIRECT ACCESS TO THE COURT BE GRANTED
The
jurisdiction of the Court is provided for under section 167(1) of the
Constitution.
The
Court is the highest court in all constitutional matters. It decides
only constitutional matters and issues connected with decisions on
constitutional matters. The Court has the power to make the final
decision on the question whether a matter is a constitutional matter
or whether an issue is connected with a decision on a constitutional
matter.
Direct
access is an extraordinary procedure, which is granted only in
deserving cases and has been sparingly granted. Before a party can be
granted leave to approach the Court directly in terms of section
85(1)(a) of the Constitution, he or she or it has to satisfy all the
requirements set out in Rule 21(3) of the Rules. The requirements are
as follows:
“(3)
An application in terms of subrule (2) shall be filed with the
Registrar and served on all parties with a direct or substantial
interest in the relief claimed and shall set out —
(a)
the grounds on which it is contended that it is in the interests of
justice that an order for direct access be granted; and
(b)
the nature of the relief sought and the grounds upon which such
relief is based; and
(c)
whether the matter can be dealt with by the Court without the hearing
of oral evidence or, if it cannot, how such evidence should be
adduced and any conflict of facts resolved.”
It
is peremptory for an applicant to set out facts or grounds in the
founding affidavit, the consideration of which would lead to the
conclusion that it is in the interests of justice to have the matter
placed before the Court directly.
In
Lytton Investments (Pvt) Ltd v Standard Chartered Bank Ltd and Anor
CCZ 11/18, the Court had occasion to deal with the requirements to be
satisfied in an application of this nature. It held as follows at p
19 of the cyclostyled judgment:
“The
Court turns to determine the question whether the applicant has shown
that direct access to it is in the interests of justice. Two factors
have to be satisfied. The first is that the applicant must state
facts or grounds in the founding affidavit, the consideration of
which would lead to the finding that it is in the interests of
justice to have the constitutional matter placed before the Court
directly, instead of it being heard and determined by a lower court
with concurrent jurisdiction.
The
second factor is that the applicant must set out in the founding
affidavit facts or grounds that show that the main application has
prospects of success should direct access be granted.”
Where
the jurisdiction of the Court is sought to be invoked on the
allegation that the decision of a subordinate court on a
non-constitutional matter violated a fundamental human right, the
applicant must show that the violation was a result of failure by the
subordinate court to act in accordance with the law governing the
proceedings concerned leading to an arbitrary decision.
In
the Lytton Investments case supra, the Court held as follows at pp
19-20 of the cyclostyled judgment:
“The
theory of constitutional review of a decision of the Supreme Court in
a case involving a non-constitutional matter is based on the
principle of loss of rights in such proceedings because of the
court's failure to act in terms of the law, thereby producing an
irrational decision. There must, therefore, be proof of the failure
to comply with the law. The failure must be shown to have produced an
arbitrary decision.”
What
amounts to a constitutional matter is defined in section 332 of the
Constitution as meaning a matter in which there is an issue involving
the interpretation, protection or enforcement of the Constitution.
In
Moyo v Sergeant Chacha and Ors CCZ 19/17, the Court explained the
import of section 332 of the Constitution in the following words at
p15 of the cyclostyled judgment:
“The
import of the definition of 'constitutional matter' is that the
Constitutional Court would be generally concerned with the
determination of matters raising questions of law, the resolution of
which require the interpretation, protection or enforcement of the
Constitution.
The
Constitutional Court has no competence to hear and determine issues
that do not involve the interpretation or enforcement of the
Constitution or are not connected with a decision on issues involving
the interpretation, protection or enforcement of the Constitution.”
(the underlining is for emphasis)
The
mere allegation that a fundamental human right enshrined in Chapter 4
of the Constitution has been infringed does not mean that a
constitutional issue has arisen from a decision of a subordinate
court.
A
decision of a subordinate court on any matter within the ambit of its
jurisdiction would not be found to have given rise to a
constitutional matter on the basis of a founding affidavit
complaining about an alleged incorrectness of the decision of the
subordinate court.
The
question of whether or not the court a quo correctly assessed and
evaluated the evidence before it is a factual matter that does not
involve the interpretation, protection or enforcement of the
Constitution.
A
contention that the court a quo did not take some evidence into
account in reaching its decision cannot be used as a ground to allege
that the applicant's right to a fair trial, enshrined in section
69(1) of the Constitution, was violated.
In
General Council for the Bar of South Africa v Jiba and Others [2019]
ZACC 23 it was held as follows at para 49:
“The
apparently incorrect determination of facts by the majority in the
Supreme Court of Appeal and the erroneous application of the
three-stage test to those facts also do not raise a constitutional
issue. This is because the standard is well established and the
determination of facts, whether right or wrong, does not amount to a
constitutional issue.”
Du
Plessis, Penfold and Brickhill “Constitutional Litigation” (1
edn, Juta & Co Ltd, Cape Town, 2013) state as follows at pp
23-24:
“While
the ambit of the phrase 'constitutional matter' is clearly very
wide, it is not unlimited. Most significantly, the Constitutional
Court has indicated that a purely factual matter does not amount to a
constitutional matter.
For
example, in S v Boesak 2001 (1) SA 912 (CC) the appellant contended
that the decision of the Supreme Court of Appeal upholding his
conviction for fraud and theft contravened his right to a fair trial
(and particularly the right to be presumed innocent) and to freedom
and security of the person.
The
basis for this contention was the allegation that the Supreme Court
of Appeal erred in its evaluation of the evidence and in finding that
Boesak's guilt had been proved beyond reasonable doubt.
The
Constitutional Court rejected this argument, holding that 'the
question whether evidence is sufficient to justify a finding of guilt
beyond reasonable doubt cannot itself be a constitutional matter'
or, put differently, disagreement with the Supreme Court of Appeal's
assessment of facts is not a breach of the right to a fair trial.
The
court thus held that '[u]nless there is some separate
constitutional issue raised … no constitutional right is engaged
when the appellant merely disputes the findings of fact made by the
[Supreme Court of Appeal].'” (the underlining is for emphasis)
No
constitutional issue can arise from a contention that evidence was
incorrectly assessed by the subordinate court.
The
Court does not assume jurisdiction when it is being called upon to
reverse factual findings of the court a quo on non-constitutional
issues. The remedy of an appeal is available to a litigant who is
dissatisfied with an outcome of a matter on the merits. A litigant
defines the boundaries of the appeal through the grounds of appeal.
This
is a clear remedy which was available to the applicant.
In
defining his appeal before the court a quo, the applicant raised five
grounds against the conviction and one ground against the sentence.
The
judgment of the court a quo shows that three of the grounds of appeal
against conviction were abandoned. The abandoned grounds attacked the
correctness of the High Court's decision on the allegation that
proof beyond a reasonable doubt had not been led by the respondent.
The abandoned grounds of appeal also raised the issue regarding the
lawfulness of the entrapment authority.
At
the hearing of the application, the applicant sought to argue that
the court a quo should have detailed the reasons why he abandoned
some of the grounds of appeal. The allegation was that the grounds
were not voluntarily abandoned by his legal practitioner.
The
legal practitioner acted in the interests of his client. Having
abandoned some of the grounds of appeal, the applicant could not seek
to revive those grounds of appeal in an application to the Court,
alleging that there are irregularities which amounted to a
substantial miscarriage of justice.
Once
a party abandons some of the grounds of appeal, he or she or it
cannot seek to attack the Appeal Court for accepting the abandonment.
On
the basis of the grounds of appeal that remained, the court a quo
made a finding that the applicant was properly convicted on the basis
of the evidence that was led in the Magistrate's Court. The court a
quo held that the High Court upheld the conviction of the applicant
for the offence charged on the basis of the assessment of the
evidence which was adduced in the Magistrate's Court.
This
is contrary to the applicant's averment that the High Court relied
on section 170(2) of the Criminal Law Code as a yardstick to validate
his conviction.
In
Mukondo v The State HH277/17 at p3 of the cyclostyled judgment the
High Court said:
“The
evidence shows that it was the appellant who solicited the bribe. The
learned magistrate demonstrated the length to which the appellant
went in order to make sure that he personally received the money from
the complainant. See S v Fisher 1971 (1) SA 745 (RA); S v Kamtande
1983 (1) ZLR 302.
There
is in my view no basis to interfere with the conviction by the
magistrate as it is proper. The appellant in any event failed to
discharge the reverse onus set out in section 170(2) above.”
It
is apparent that the ratio decidendi applied by the High Court in
dismissing the appeal was that there was sufficient direct evidence
adduced by the prosecution to prove the guilt of the applicant beyond
reasonable doubt. Reference to section 170(2) of the Criminal Law
Code is not evidence of the factors which the court took into account
and which influenced its mind in making the determination it made.
Reference to section 170(2) of the Criminal Law Code was made after
the court had reached the conclusion, based on the analysis of the
evidence adduced by the State, that the applicant had been properly
convicted of the offence of bribery, as the evidence had proved his
guilt beyond reasonable doubt.
The
court a quo was also alive to the issue of the effect of the
reference by the High Court to section 170(2) of the Criminal Law
Code.
The
court a quo noted that the High Court commented on section 170(2) of
the Criminal Law Code. The court a quo found that the issue regarding
the section in question was a red herring because the conviction was
not predicated on that provision.
At
p5 of the cyclostyled judgment in Mukondo v The State SC44/19 the
court a quo said:
“It
is clear from a reading of the record that the remarks by the court a
quo were made mero motu and were not based on any submissions that
had been made for and on behalf of the respondent before that court.
Secondly, the remarks were incorrect as far as they purported to
confirm a position that the trial court had taken on the matter. The
trial court did not make any finding on the reverse onus that is
created by section 170(2). Finally, and more importantly, the remarks
by the court a quo on section 170(2) were made after the court had
concluded that the conviction of the appellant was proper on the
basis of the weight of the evidence that the State had led against
him.
Thus,
the ratio decidendi of the court a quo was its finding that it could
not interfere with the factual findings of the trial court, which
findings were that the State had led overwhelming evidence against
the appellant.
It
is our finding that the remarks constitute an obiter dictum and had
no effect on the court's ratio decidendi. Being such, the remarks
cannot form the basis of an appeal. This is the trite position at
law.”
The
Court does not interfere with non-constitutional findings of the
lower courts, which findings are arrived at after a careful
assessment of the evidence as a whole.
Even
if it is assumed that the court a quo erred in the assessment of the
evidence before it, that would not amount to a violation of the right
to a fair trial. The Constitution could not possibly have sought to
protect litigants against “wrong decisions”.
In
Lane and Fey NNO v Dabelstein and Ors 2001 (2) SA 1187 (CC) the
Constitutional Court of South Africa held at p1190B-C:
“Even
if the [Supreme Court of Appeal] erred in its assessment of the
facts, that would not constitute the denial of the ['right to a
fair trial and to fair justice']. The Constitution does not and
could hardly ensure that litigants are protected against wrong
decisions. On the assumption that section 34 of the Constitution does
indeed embrace that right, it would be the fairness and not the
correctness of the court proceedings to which litigants would be
entitled.”
In
Williams and Anor v Msipha N.O. and Ors 2010 (2) ZLR 552 (S) at
567B-E the Supreme Court, sitting as a Constitutional Court, said:
“The
Constitution guarantees to any person the fundamental right to the
protection under a legal system that is fair but not infallible.
Judicial
officers, like all human beings, can commit errors of judgment. It is
not against the wrongfulness of a judicial decision that the
Constitution guarantees protection. A wrong judicial decision does
not violate the fundamental right to the protection of the law
guaranteed to a litigant because an appeal procedure is usually
available as a remedy for the correction of the decision.
Where
there is no appeal procedure there cannot be said to be a wrong
judicial decision because only an Appeal Court has the right to say
that a judicial decision is wrong. See Maharaj v AG of Trinidad &
Tobago (No.2) (PC) [1979] AC 385 at 399 D–H; Boordman v Attorney
General [1996] 2 LRC 196 at 205i–206b.”
A
reading of the judgment of the court a quo shows that it did not make
any determination on a constitutional issue.
The
court a quo held that the constitutional question which the applicant
purportedly intended to raise in his grounds of appeal had no basis.
The reason was that the High Court had not confirmed the applicant's
conviction on the basis of section 170(2) of the Criminal Law Code.
The court a quo also noted that the constitutionality of section
170(2) of the Criminal Law Code was not an issue before the trial
court. Neither had the presumption of a contravention of section
170(2) of the Criminal Law Code, upon proof by the State of the fact
of obtaining, accepting or soliciting a gift or consideration, been
relied upon in convicting the applicant.
Counsel
for the applicant conceded in the court a quo that the provision had
not been relied on.
The
court a quo correctly held that there was no basis for seeking to
raise as a question of any relevance in the hearing and determination
of the appeal against the decision of the High Court the
applicability of the provisions of section 170(2) of the Criminal Law
Code.
A
perusal of the papers before the Court shows that the applicant is
basically dissatisfied with the manner in which the evidence was
assessed and evaluated by the trial court. He is further dissatisfied
by the fact that the court a quo did not set aside the conviction and
sentence on account of alleged irregularities.
The
Court finds the application for an order for direct access to be a
disguised appeal against the decision of the court a quo which upheld
the conviction and the sentence. This can be gleaned from the
applicant's founding affidavit, where he states that:
“…
if
leave for direct access is granted, I seek for a relief to set aside
the proceedings conducted under case number B1361/14, and the
subsequent upholding of the foregoing proceedings under case numbers
HH935/14 and SC820/17 as being inconsistent with the right to a fair
trial guaranteed under section 69(1) of the Constitution of Zimbabwe.
I
further pray for remittal of the case for trial de novo to Guruve
Magistrate Court before a different magistrate.”
The
relief sought is the same as the relief that was sought on appeal to
the Supreme Court.
In
Prosecutor General v Telecel Zimbabwe 2016 (2) ZLR 422 (CC) at 428D
the Court said:
“…
while
the applicant did not specifically state so in his application, in
reality the matter was an appeal brought to this Court under the
guise of an application. This is abundantly evident from the relief
that is outlined in his draft order. It is even more evident from his
summary of the background to the intended application, as already
indicated. He indicated that he wished to approach this Court 'for
an order setting aside the Supreme Court judgment …'.”
The
applicant is seeking to appeal against the dismissal of the appeal by
the Supreme Court.
DISPOSITION
The
application is hereby dismissed with no order as to costs.
GWAUNZA,
DJC: I agree
GARWE,
AJCC: I agree
National
Prosecuting Authority, respondent's legal practitioners
