1.
PATEL
JCC: 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 22-SC-001.
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
2.
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 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 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.
3.
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.
4.
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 JSC had failed to comply with section
3(1)(a) of the 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 JSC. The court found that the question of the
applicant's alleged gross misconduct was a matter for the Tribunal
to determine.
5.
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 JSC'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.
6.
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
7.
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 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 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 JSC and not on
the appellant.
(iv)
In not finding that section
187(3) of the Constitution
requires the 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 JSC is required to determine the existence or
otherwise of the jurisdictional facts under section
187(3)
before sending its advice to the President.
8.
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 JSC to delegate to its Secretary the critically
important duty of defending in court its advice to the President
under section
187(3).
(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 JSC proceeding in
terms of section
187(3).
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)
requires the full scope of the audi
alteram partem
rule and a finding by the JSC on the existence of the jurisdictional
facts contemplated in section
187(1).
(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.
9.
The 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.
10.
The sixth and seventh respondents 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
11.
Applications for leave to appeal to this Court are governed by Rule
32 of the 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.
12.See
Cold
Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017
(1) ZLR 14 (CC) at 15G-16E;
Muza M v Saruchera. N.O. & Ors 19-CC-005;
Bonnyview Estate (Pvt) Ltd v Zimbabwe Platinum Mine (Pvt) Ltd &
Anor 19-CC-006;
Ismail v St. Johns College & Ors 19-CC-019;
TBIC Investments (Pvt) Ltd v Mangenje & Ors 20-CC-015;
Rita Mbatha v National Foods 21-CC-006;
Gift Konjana v Dexter Nduna 21-CC-009.
13.
I shall address each of the above requirement's ad
seriatim
in their application to the facts and circumstances of the present
matter.
Clear
and concise exposition of constitutional matter
14.
The application in
casu,
at its outset, relates to the requirements of Rule
32(3)(c)
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).
Decision
appealed against on constitutional matter?
15.
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. Mr Madhuku,
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. Mr Madhuku
further submits that the fact that the Supreme Court wrote its
judgment without reference to these points is irrelevant.
16.
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
17-CC-019;
Chani
v Mwayera J & Ors
20-CC-002.
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.
17.
It is necessary to pinpoint the relevant references adverted to by
counsel. In the founding affidavit in Case No. HC2302-20, at para.
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 paras. 55 and 56, the
applicant asserts that no jurisdictional circumstances exist that
would have entitled the JSC to refer the matter to the President.
18.
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”.
19.
At para. 57, the applicant attacks the decision of the 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 paras. 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.
20.
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”.
21.
At para. 68, the applicant assails the failure of the 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 para. 70, the applicant observes that the office of a judge is
sacrosanct and, at para. 77, he affirms the need for the JSC to
protect its judges from unmeritorious attacks on their dignity and
standing.
22.
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”.
23.
Turning to the applicant's heads of argument in the High Court,
paras. 2 to 4 address the point that the 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
paras. 2 to 7 of the applicant's heads of argument before the
Supreme Court.
24.
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).
25.
At paras. 11 to 17, the applicant sets out his attack on the quorum
of the JSC at the meeting whereat it decided to refer his matter to
the President under section
187(3).
Reliance is placed upon section
341(1)
and (2)
of the Constitution
pertaining to the quorum of any constitutional body.
26.
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.
27.
At paras. 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)
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”.
28.
It is further argued that the failure of the 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”.
29.
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)”.
30.
Mr Chinake,
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.
31.
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.
32.
Mr Magwaliba,
for the sixth and seventh respondents, adopts the same stance. He
submits that the applicant did not directly impugn the conduct of the
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.
33.
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.
34.
In reply, Mr Madhuku
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.
35.
Mr Uriri,
co-counsel for the applicant, submits that when one relates to the
Administrative Justice Act then one is seeking to enforce the
Constitution
itself. As regards referrals to the President under section
187(3) of the Constitution,
the JSC must apply its mind to that process and choose to apply the
procedures available under the Judicial Code of Ethics as opposed to
a referral to the President in terms of section
187(3).
Proceedings
in the High Court
36.
The application before the High Court, in its heading, declares
categorically and unequivocally that it is a court application in
terms of section 4 of the Administrative Justice Act. Again, in
paras. 5 and 6 of the application, it is asserted that the JSC, being
an administrative authority, failed to act in accordance with section
3(1)(a) of the Act
and that its decision to refer the matter to the President was
“unlawful, grossly irregular and therefore invalid”. In similar
vein, the founding affidavit in the High Court sets out the nature of
the application in para. 11, as being made in terms of section
4 of the Act
and on the premise that the JSC did not comply with section
3(1)(a) of the Act
in that it failed “to act lawfully, reasonably and in a fair
manner”.
37.
On the other hand, para. 7(5) of the application, relating to the
alternative prayer sought, is framed on the basis that Proclamation
No.1 of 2020 does not set out the jurisdictional circumstances
necessary to found a prima
facie
case for the dismissal of a judge as envisaged by section
187(3) of the Constitution.
This is also mirrored in para. 5 of the draft order sought in the
High Court. Additionally, the founding affidavit, in para. 56, refers
to the failure of the JSC to apply its mind to the grounds for the
removal of a judge in terms of section
187(1).
However, very notably, the conclusion drawn in that regard is that
the decision of the JSC to refer the matter to the President was
“grossly unreasonable and irrational”.
38.
Turning to the record of proceedings before the High Court, counsel
for the applicant, in addressing the propriety of the JSC's
opposing affidavit, its allegedly inquorate status and the absence of
jurisdictional circumstances warranting referral of the matter to the
President, certainly appears to have relied upon various provisions
of the Constitution
in order to buttress his arguments. Nevertheless, it is abundantly
clear that the judgment of the High Court, and its reasoning in
arriving at its conclusions, are not in any way grounded upon any
constitutional principle or requirement. On the contrary, the
judgment and the reasons therefor are firmly anchored in the relevant
provisions of the Administrative Justice Act.
39.
Having regard to the pleadings and proceedings in the High Court, it
appears to me that the applicant did not raise any specific
constitutional issue for determination by that court. To the extent
that he did allude to certain provisions of the Constitution,
he did so purely incidentally in order to demonstrate the alleged
failure of the JSC “to act lawfully, reasonably and in a fair
manner” in compliance with section 3(1)(a) of the Administrative
Justice Act. The applicant's cause of action, as expounded
throughout the application and his founding affidavit, was
essentially predicated on the perceived unlawful, unreasonable and
unprocedural conduct of the JSC, in alleged violation of its duties
and obligations as an administrative authority, albeit as a creature
of the Constitution.
Constitutional
matter in the High Court
40.
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.
41.
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),
at para. 22:
“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.”
(My emphasis).
42.
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's
case, supra,
at p.9.
43.
I shall proceed to consider the relevant issues that arose for
determination in the High Court. The first issue relates to the
representation of the JSC by its Secretary. The court considered this
to be justified on the basis of section
10(2) of the Judicial Service Act [Chapter
7:18],
which bestows the Secretary with the competence to represent the JSC.
It is trite that a constitutional matter cannot arise where the
impugned conduct is predicated on an unchallenged and valid statute.
See Magurure
& Ors v Cargo Carriers International Hauliers (Pvt) Ltd
16-CC-015,
at para 20.
44.
In
casu,
the question of the legality of the JSC's representation by its
Secretary was determined on the basis of extant statutory provisions,
which provisions must be presumed to be constitutional. See Mujuru
v President of Zimbabwe & Ors
18-CC-008.
Thus,
no constitutional matter could arise in respect of conduct based on
the Judicial Service Act and the High Court Rules, unless the
provisions in question were themselves impugned for being
unconstitutional. Accordingly, in respect of the first issue, there
was no constitutional issue involved.
45.
The second issue concerns the quorum of the JSC at its meeting of 13
December 2019. Both the High Court and the Supreme Court dismissed
the claim that the JSC was inquorate on the basis of the absence of
pertinent evidence. The questions as to the proof that was required
to show that the JSC did not have the requisite quorum and the party
upon whom the onus to prove the same rested are undoubtedly questions
of evidence. In
casu,
there was no allegation by the applicant based on any provision of
the Constitution
to the effect that he was not required to prove that the JSC was
inquorate at the relevant time.
In
the absence of any such averment, no constitutional matter could have
arisen regarding the party upon whom the onus rested to prove that
the JSC was quorate or inquorate.
46.
The third issue revolves around the applicant's contention that
section
187(3) of the Constitution
enjoined the JSC to accord to him “the full scope of the audi
alteram partem
rule” before transmitting its advice to the President. Critically,
the applicant's founding affidavit does not state that he based his
entitlement to the full scope of the rule on section
187(3)
or any other provision of the Constitution.
47.
Once again, in the absence of any such statement, the constitutional
basis of the audi
alteram partem
rule could not have arisen as an issue for determination before the
High Court. Rather, the issue seems to have been raised by way of
inference from the Administrative Justice Act and the common law.
Thus,
it cannot be said that there was a constitutional issue in this
regard.
48.
The fourth issue pertains to the question whether or not the JSC was
required to determine the existence or otherwise of jurisdictional
grounds under section
187(1) of the Constitution
before forwarding its advice to the President. Here too, although the
applicant averred that any one of the three jurisdictional facts in
section
187(1)
had to be established before the question of his removal was referred
to the President, he did not base such requirement on the
Constitution.
49.
Instead, he took the position that the advice given by the JSC
“should have been reasonable and grounded in logic”. He added
that the JSC never informed him of the accusation against him that
warranted a referral of his matter to the President. He therefore
concluded that the decision of the JSC “was grossly unreasonable
and irrational”. It is evident that the applicant did not
specifically regard the source of the requirement to establish the
jurisdictional facts as being section
187(1)
or section
187(3)
or any other provision of the Constitution.
In as much as his application was premised on the Administrative
Justice Act, it is plausible to assume that he considered that Act to
be the legal basis of the supposed requirement to establish
jurisdictional facts.
Accordingly,
no constitutional matter could have arisen in the absence of a
properly pleaded basis that the requirement to establish the
requisite jurisdictional facts arose from the Constitution.
50.
Having regard to all of the foregoing, I am constrained to conclude
that there was no clearly defined constitutional matter before the
High Court and, consequently, on appeal from that court to the
Supreme Court. This is so because the applicant's pleadings in the
High Court are entirely unsupportive of the constitutional matters
that he alleges to have been before the court. To put it differently,
no constitutional matter could have arisen in that court in the
absence of pleadings grounding the determination of the alleged
constitutional issues. It therefore follows that the jurisdiction of
this Court cannot be activated as section
167(1)(b) of the Constitution
stipulates that the Constitutional
Court only decides constitutional matters. As was held in the Cold
Chain case, supra,
at 15H-16E:
“If
the subordinate court had no constitutional matter before it to hear
and determine, no
grounds of appeal can lie to the Constitutional
Court,
as a litigant cannot allege that the subordinate court misdirected
itself in
respect of a matter it was never called upon to decide for the
purposes of resolution of the dispute between the parties.”
(My emphasis)
This
Court has recently reinforced the position that the right of appeal
to the Court is a limited right, strictly confined to an appeal
against the decision of a subordinate court on a constitutional
matter only.
51.
See Mbatha's
case, supra,
at p. 5.
Proceedings
in the Supreme Court
52.
Turning to the proceedings in the Supreme Court, the grounds of
appeal before that court are tendentiously framed in a manner
importing the supposed application of section
187 of the Constitution.
The oblique references to that provision appear to have been inserted
to cloak and circumvent the absence of any constitutional
determination in the judgment of the High Court. Be that as it may,
the Supreme Court dismissed all the grounds of appeal in their
entirety without venturing into the constitutional domain. The court
a quo
predicated its findings and decision exclusively on the relevant
statutory provisions and the applicable principles of the common law.
It did not traverse or determine any constitutional question.
In
my view, the Supreme Court quite correctly proceeded on that basis
given that the impugned decision of the High Court was devoid of any
constitutional issue or determination. In short, neither of the
subordinate courts can be impeached for any alleged constitutional
aberration in its reasoning or judgment.
Subsidiarity
and Avoidance
53.
For the sake of completeness, I must advert to the twin doctrines of
subsidiarity and avoidance both of which are now firmly entrenched in
our constitutional jurisprudence. They constitute a further reason
for declining leave to appeal in this case. Both doctrines are
predicated on the seamless and holistic nature of our legal system
and on the precept that all legislative enactments, both primary and
subordinate, are ultimately grounded in and derive their legal force
and authority from the Constitution
itself.
54.
The principles embedded in these doctrines, coupled with the concept
of ripeness, enjoin the application and exhaustion of alternative
remedies that are available outside the immediate parameters of the
Constitution.
Accordingly, where it is possible to decide any case without resort
to any possible constitutional question or remedy, then that is the
course and procedure that must ordinarily be followed. See S
v Mhlungu & Ors
1995
(3) SA 867 (CC);
Chawira
& Ors v Minister of Justice, Legal and Parliamentary Affairs &
Ors
17-CC-003;
Moyo
v Sgt. Chacha, ZAAC, ZRP & PG
17-CC-019.
55.
In the present matter, as highlighted earlier, the applicant opted to
proceed under the Administrative Justice Act. He did not rely on any
provision of the Constitution
directly in order to found his case, but only tangentially by way of
reference so as to locate his cause of action in the supposed
infringements of section
3 of the Act
allegedly perpetrated by the JSC. Consequently, he was obliged to
pursue and adhere to his statutory cause of action without recourse
to any constitutional principle or remedy.
Matter
of Public Importance
56.
Mr Madhuku
entreats the Court to consider an additional factor, to wit, whether
the matter is one of general public importance. Relying on Radio
Pretoria v Chairperson, Independent Communications Authority of South
Africa & Anor
2005
(4) SA 319 (CC),
at para. 22, he submits that, in appropriate circumstances, the
interest of justice requires the Court to decide a constitutional
matter for the benefit of the broader public or to achieve legal
certainty or for some other public purpose, even if the decision is
of no practical value to the litigants involved. He further submits
that the issues to be raised in the intended appeal, being anchored
on the independence of the judiciary, in particular, the tenure of
office of judges, ought to be authoritatively determined by this
Court in the public interest.
57.
The removability of judges, so he argues, must impact on the grounds
of appeal in
casu
and on the request for leave to appeal to this Court. He cites in
this respect the United Nations Basic Principles on the Judiciary
(1985), the Bangalore Principles of Judicial Conduct (2002) and The
Appointment, Tenure and Removal of Judges under Commonwealth
Principles (2015). For all of these reasons, he urges this Court to
tilt in favour of granting leave to appeal.
58.
I fully endorse the view that questions pertaining to the tenure and
removal of judges from office are vital to the independence of the
judiciary. That independence constitutes the cornerstone of every
constitutional democracy. In this context, the security of judicial
tenure is to be jealously guarded and should not be derogated from
except in the clearest circumstances. It is undoubtedly a matter of
considerable public importance. Nevertheless, the adjudication of any
such question must be inextricably linked to the determination of a
constitutional matter. Without that critical component, it would be
procedurally improper to invoke and activate the jurisdictional
competence of this Court to review the judgment of any subordinate
court.
59.
In the present context, having concluded that there was no
constitutional issue properly raised or determined in the High Court
or the Supreme Court, it is extremely difficult to tilt the balance
in favour of granting leave to appeal to the full bench of the Court
on the sole basis that the case raises questions of general public
importance. To do so would open the floodgates to a multitude of
cases that are of obvious public importance but which fall outside
the jurisdictional remit of this Court.
For
this additional reason, I am unable to accede to the grant of leave
to appeal in the present case.
Costs
60.
The applicant has not sought costs in this matter. However, the JSC,
in its heads of argument, has motivated the Court to grant costs on a
legal practitioner and client scale. Similarly, the sixth and seventh
respondents, through their heads of argument and submissions in
court, have also sought costs, albeit on the ordinary scale. The
respondents claims for costs are premised on the argument that the
application is devoid of merit.
61.
The respondents appear to have disregarded Rule 55 of the Rules
which, in keeping with the established practice of this Court,
provides that generally no costs are awarded in constitutional
matters. This practice was recently reaffirmed in Mbatha
v Confederation of Zimbabwe Industries & Anor
21-CC-005,
at p.11. In my view, there is no basis or justification in this case
to depart from the norm of not awarding costs in a constitutional
matter.
Disposition
62.
I have concluded that no constitutional matter was properly raised
before the High Court or the Supreme Court and that neither court
determined any constitutional question. It follows that the
application for leave to appeal in
casu
is not one for leave to appeal against any decision of a subordinate
court on a constitutional matter.
63.
That being the case, inasmuch as there is no constitutional issue to
be determined in the intended appeal, it becomes unnecessary to
consider the applicant's prospects of success on appeal.
64.
Moreover, even though the sacrosanctity of judicial independence
quite properly espoused by the applicant is a matter of general
public importance, I am of the considered opinion that it would not
be in the interests of justice to grant leave to appeal in the
instant case.
In
the result, it is ordered that the application be and is hereby
dismissed with no order as to costs.
GARWE
JCC: I
agree
HLATSHWAYO
JCC: I
agree
Dube,
Manikai & Hwacha, applicant's legal practitioners
Kantor
& Immerman, 1st
respondent's legal practitioners
Civil
Division of the Attorney-General's Office, 6th
and 7th
respondents legal practitioners
