Cause of Action and Draft Orders re: Approach iro Constitutional Proceedings

Appealed
CC05-24 : PENELOPE DOUGLAS STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

This matter was placed before the full bench of this Court for confirmation of an order of constitutional invalidity pursuant to Rule 31 of the Constitutional Court Rules 2016 (hereinafter “the Rules”) as read with section 175(1) of the Constitution, against the judgment of the High Court (hereinafter “court a quo”) in the case of Penelope Douglas Stone & Anor v Central Africa Building Society & Ors HC4243/21.

At the end of the proceedings, the Court made an order, the operative part of which read as follows:

“1. The confirmation of the order of the court a quo is declined.

2. The order of the court a quo is set aside in its entirety.

3. There shall be no order as to costs.

4. Reasons for the decision are to follow in due course.”

What follows are the reasons for that order.

FACTUAL BACKGROUND

The applicants before this Court are partners in an architectural enterprise. The first respondent is Central African Building Society (CABS). The second respondent is the Reserve Bank of Zimbabwe (RBZ), with the third respondent being the Minister of Finance and Economic Development.

The applicants applied to the court a quo, purportedly in terms of section 85(1) of the Constitution. They sought a declarator to the effect, that, Exchange Control Directive No. RT120/2018, issued by the second respondent, was unconstitutional due to an alleged violation of the right to property enshrined under section 71 of the Constitution.

In addition, the applicants sought a declaration to the effect, that, the same directive was grossly unreasonable and ultra vires section 35(1) of the Exchange Control Regulations, SI109 of 1996, and was accordingly invalid.

The constitutionality of sections 44B(3)-(4) and 44C of the Reserve Bank Act [Chapter 22:15] was also impugned on the premise that the provisions in question violated section 71 of the Constitution.

A similar declaration was sought with respect to sections 21(1)(b), 22(2), 22(4)(a) and 23(1)-(3) of the Finance (No.2) Act of 2019 for allegedly violating the aforementioned section 71 of the Constitution.

Consequent to the above, the applicants sought a further declaration that the conversion of their USD142,000 to RTGS142,000 was unconstitutional and violated section 71 of the Constitution. They therefore sought an order compelling the first respondent to reimburse them the sum of USD142,000.

The genesis of the dispute stemmed from the applicants inability to access funds in USD from an account maintained by them with the first respondent.

The applicants are architects and are partners in an architectural firm. The firm operates bank accounts with the first respondent. On 17 October 2018, they demanded the release to themselves of the sum of USD142,000 from one of their accounts.

By letter dated 4 October 2018, the first respondent responded to the demand and indicated that it was unable to pay them that amount as the account was now denominated in the RTGS currency following a directive from the second respondent, the Reserve Bank of Zimbabwe (RBZ).

The first respondent advised them that the requested sum could not be paid out in United States Dollars on the basis of the Exchange Control Directive RT 120/2018, which essentially converted the pre-existing sum to RTGS denomination.

This was confirmed in correspondence between the parties on 24 October 2018.

The applicants do not accept that the conversion of that account was lawful, and, as a consequence, contend that a constitutional issue arose from the fiction of equating the United States Dollar with the local RTGS by the authorities.

It was submitted on their behalf, that, the Government itself had recognised the superficiality of the parity argument between the United States Dollar with the local RTGS currency. Contrary to its stated position, on the argument of parity between the USD and the local currency, Government had insisted on payment of certain obligations be made exclusively in United States Dollars. To cement their argument, the applicants made reference to the exclusive levy of fuel prices in United States Dollars.

It was contended, that, the first respondent would be unjustly enriched at their expense due to this legal fiction of parity.

They submitted before the court a quo, that, the impugned legislation served to deprive them of their rights under section 71 of the Constitution and could not be justified under the limitation clause in section 86 of the Constitution.

The applicants argued, that, section 71(3) of the Constitution sets out the standards for the compulsory acquisition of property, which requirements were not satisfied by the impugned legislation.

It was further submitted, that, the law of general application which authorizes compulsory deprivation must also entitle claimants to apply for compensation, which was not satisfied by the impugned law.

Further to this, the applicants contended, that, their application was properly before the court, regard being had to the judgment by the Supreme Court involving the same parties.

They contended, that, the remarks in the judgment had given them the conviction that they could succeed in suing the respondents once they had impugned the parent statute that had given birth to the Exchange Control Directive in question.

For these reasons, they contended that Exchange Control Directive No. R120/2018, sections 44B(3)-(4) and 44C of the Reserve Bank Act and sections 21, 22 and 23 of the Finance (No.2) Act of 2019 violated section 71 of the Constitution, and, that, as a consequence, the first respondent was obliged to reimburse them the sum of USD142,000.

The application was opposed by all the respondents in the court a quo.

The first respondent raised the preliminary issue that the relief sought was defective. It argued that a declaration of constitutional invalidity could not give rise to any automatic positive rights on behalf of the applicants, and further, that, it could not be compelled to effect payment in a constitutional matter until such proceedings were confirmed by the Constitutional Court.

On the merits, it maintained that its actions in the matter were guided by validly promulgated laws.

The first respondent contended, that, the impugned directive only mandated the deposit of foreign currency from offshore sources into Nostro accounts. However, the funds in the account maintained by the applicants had emanated from local deposits and were therefore excluded from this category.

The first respondent further submitted, that, there could not be a claim for unjust enrichment against it because, as a Building Society, its funds were deposited with the second respondent, the Reserve Bank of Zimbabwe.

It noted that the second and third respondents had the requisite legal authority to regulate monetary and fiscal matters in terms of the Reserve Bank Act.

The first respondent also submitted, that, the plea of res judicata was applicable in casu as the matter had been argued to finality in the Supreme Court.

In turn, the second respondent also submitted that the matter was res judicata as the Supreme Court had dealt with the same matter on appeal from the court a quo.

On the merits, it submitted that the impugned legislation did not violate section 71 of the Constitution.

The third respondent also associated itself with the arguments by the first and second respondents, and, further submitted that the impugned legislation did not take away any of the applicants rights.

Counsel for the third respondent suggested that the applicants ought to have joined Parliament to the proceedings as they had sought to impugn acts done in terms of a valid statute.

In response, the applicants submitted, that, after the operationalisation of the Directive, the funds in their account with the first respondent, when converted at the official exchange rate, amounted to a mere US$1,604=52 which they suggested constituted a violation of section 71 of the Constitution.

They sought to counter the allegation that the issue had not been properly taken, regard being had to the doctrine of res judicata, on the basis that there had been no determination on the constitutionality of the exchange control directive by either the High Court or the Supreme Court.

Although the court a quo agreed that the subject matter in the dispute before it was the same as that previously litigated upon, it concluded that the matter was not res judicata because the question regarding the constitutionality of the impugned legislation remained in issue. As a consequence, it dismissed the preliminary point.

It also disregarded the preliminary point raised on the principle of subsidiarity, terming the point in limine “pedantic and a miscarriage of justice.”

On the merits, the court a quo held that it would determine the constitutionality of the Exchange Control Directive separately from the issue that it was ultra vires section 35(1) of the Exchange Control Regulations, 1996.

Although its constitutional validity was not an issue for determination before it, the court a quo found that section 35(1) of the Exchange Control Regulations 1996 was not ultra vires section 71 of the Constitution.

Thereafter, the court a quo concluded that paragraphs 2.5 and 2.6 of the Exchange Control Directive RT120/2018 were ultra vires section 35(1) of Exchange Control Regulations 1996. It further determined, that, Exchange Control Directive RT 120/2018 was impeachable along with the other impugned legislative provisions in the sense that they interfered with the contractual rights of the parties, and, in turn, breached section 71 of the Constitution. The provisions were held to invade property rights protected under section 71(2) of the Constitution.

Consequent thereto, it issued an order which is now subject to confirmation by this Court. The order reads as follows:

“(i) Paras 2.5 and 2.6 of the Exchange Control Directive RT 120/2018, dated 4 October 2018, are ultra vires section 35(1) of the Exchange Control Regulations 1996, SI 109 of 1996, and are hereby set aside.

(ii) Subject to section 175(1) of the Constitution of Zimbabwe -

1. The conversion of the amount of USD142,000 standing to the credit of the applicants savings account No.1005428905 with the first respondent, as at 28 November 2016, violated section 71 of the Constitution.

2. Paras 2.5 and 2.6 of the Exchange Control Directive RT120/2018 aforesaid violate section 71 of the Constitution.

3. Section 22(1)(b) and (d) and section 22(4)(a) of the Finance Act (No.2) Act No.7 of 2019 violate section 71 of the Constitution and are hereby set aside.

4. The first respondent shall pay the applicants the sum of USD142,000 together with interest thereon at the rate of 5% per annum from 28 November 2016 to the date of payment.

5. The respondents shall pay the costs of suit jointly and severally, the one paying the others to be absolved.”

SUBMISSIONS ON BEHALF OF THE APPLICANTS

At the onset of proceedings, the parties were directed to address the Court on whether the matter was properly before the court a quo.

Counsel for the applicants submitted, that, the matter was properly before the court a quo.

He argued that the applicants rights, under section 71 of the Constitution, had been violated by the impugned laws. He suggested that the co-joining before the court a quo of constitutional and non–constitutional issues was not improper.

To that end, he made reference to several authorities that he contended provided exceptions to the principle of constitutional avoidance, and, in this particular respect, submitted that the conflation of issues was held to be non-fatal in the seminal case of Mudzuru & Anor v Minister of Justice, Legal & Parliamentary Affairs NO & Ors CC12-15, now reported as M & Anor v Minister of Justice, Legal & Parliamentary Affairs N.O. & Ors 2016 (2) ZLR 45 (CC).

Counsel for the applicants submitted, that, the principle of res judicata was inapplicable in casu because the aforementioned constitutional issues were not determined in previous litigation.

Therefore, his view was that the matter was properly before the court a quo.

SUBMISSIONS ON BEHALF OF THE FIRST RESPONDENT

Per contra, counsel for the first respondent submitted, that, the matter was not properly before the court a quo.

Counsel contended that the matter, as pleaded by the applicants, went beyond the confines of an application within the contemplation of section 85(1) of the Constitution.

In addition, it was contended on behalf of the first respondent, that, the applicants pleadings lacked the specificity required by the Rules and that the court a quo, mero motu, had identified paragraphs 2.5 and 2.6 of Exchange Control Directive RT128/2018 as being impeachable, and, therefore, unconstitutional.

Counsel for the first respondent further argued, that, the court a quo over-reached its jurisdictional ambit by determining a constitutional issue once it had dealt with a non–constitutional issue.

In addition, it was his contention that the principle of res judicata was applicable in casu since there was previous litigation concerning the same subject matter between the same parties, and, critically, premised on the same cause of action.

He further submitted, that, the court a quo fell into error when it invalidated section 22 of the Finance Act [Chapter 23:04] because that piece of legislation sought to be impugned had only come into effect after the applicants cause of action had allegedly arisen.

SUBMISSIONS ON BEHALF OF THE SECOND RESPONDENT

In turn, counsel for the second respondent associated himself with and concurred with submissions made on behalf of the first respondent, that, the constitutional jurisdiction of the court a quo was not properly invoked.

He made specific reference to Rule 107 of the High Court Rules 2021 as indicative of the appropriate procedure to be followed in constitutional matters before the High Court.

Counsel for the second respondent submitted, that, the applicants reliance on section 85(1) of the Constitution placed an obligation on the applicants to establish the violation of a fundamental right. He pointed to the applicants reliance on exceptions to the general rule of constitutional avoidance as an admission that the matter was principally non–constitutional in nature.

Consequently, counsel for the second respondent submitted, that, the judgment of the court a quo ought to be set aside in its entirety.

SUBMISSIONS ON BEHALF OF THE THIRD RESPONDENT

Counsel for the third respondent also buttressed the point, that, the matter was improperly before the court a quo.

He submitted that the constitutional relief sought before the court a quo was merely tangential to the motive of the applicants, which was the recovery of USD142,000.

He submitted that there must be specificity in the pleadings when declarations of constitutional invalidity are sought in order to preserve the principle of the separation of powers.

It was his submission that the relief sought should not be granted.

THE LAW

Section 175(1) of the Constitution provides, that, where a court makes an order concerning the constitutional invalidity of any law or the conduct of the President or Parliament, the order has no force or effect unless it is confirmed by this Court. Thus, the order of constitutional invalidity by a subordinate court does not bind the Constitutional Court.

It must itself conduct an examination into the constitutionality of the impugned conduct or statute as it is the sole court with the jurisdiction, under the Constitution, to declare such conduct or statute as being unconstitutional or invalid.

As a consequence, the law requires that the Constitutional Court must itself be satisfied as to the invalidity of the law or conduct being impugned.

It is trite that under section 175(1) of the Constitution any declaration is subject to the over-arching jurisdiction and supervisory role of the Constitutional Court.

In this enquiry, it must first decide whether the challenge to the constitutional validity of the law or impugned conduct was properly before the court a quo.

By operation of law, the confirmation proceedings before this Court are, in essence, a process of review of the proceedings before the court a quo.

The principles which are applicable in confirmation proceedings are settled:

(i) Firstly, given the limited jurisdiction of the Constitutional Court as a special court, it has to be determined whether there was a constitutional matter before the subordinate court.

(ii) Secondly, the constitutional matter which would have arisen in the subordinate court must have been properly before that court, and that court must have had the competence to deal with the matter.

The power of this court, in confirmation proceedings, takes the form of a review of the constitutional matter to satisfy itself that the order of constitutional invalidity was correctly made: see S v C (A Juvenile) (Justice for Children's Trust and Zimbabwe Lawyers for Human Rights Intervening as Amici Curiae) 2019 (2) ZLR 12 (CC) and Mupungu v Minister of Justice Legal & Parliamentary Affairs CC07-21.

In Makamure v Minister of Public Service, Labour and Social Welfare and Anor CC01-20 MALABA CJ pertinently posited the following:

“The Court is also not bound by the order of constitutional invalidity made by the court a quo. In S v Chokuramba CC10-19, the Court held at p6 of the cyclostyled judgment as follows:

'The Court is empowered to confirm an order of constitutional invalidity only if it is satisfied that the impugned law or conduct of the President or Parliament is inconsistent with the Constitution. It must conduct a thorough investigation of the constitutional status of the law or conduct of the President or Parliament which is the subject-matter of the order of constitutional invalidity. The Court must do so irrespective of the finding of constitutional invalidity by the lower court and the attitude of the parties.'”

The Court therein noted, that, the invalidity of the law or conduct was a legal consequence of a finding of inconsistency between the law and conduct which the Court might not necessarily be in agreement with.

Thus, the Constitutional Court is empowered to confirm an order of constitutional invalidity only if it is satisfied that the impugned law or conduct of the President or Parliament is indeed inconsistent with the Constitution.

See also Phillips and Anor v Director of Public Prosecutions and Ors 2003 (3) SA 345 (CC)…,.

Given the foregoing, it seems to me that three issues arise for determination:

(i) The first is whether the court should have found that the matter was res judicata, and, as a consequence, declined exercising its jurisdiction in determining the application.

(ii) The second, but quite fundamental issue, is whether a proper constitutionally based cause of action was placed before the court a quo justifying its assumption of jurisdiction and the order that it made.

The respondents contend, that, the lack of specificity in pleading the cause of action should have non-suited the applicants before the court a quo.

(iii) The third is whether the court a quo should have declined to consider the alleged unconstitutionality of the Directive based on the doctrine of subsidiarity, as argued by the respondents.

WHETHER THE CAUSE OF ACTION WAS PROPERLY PLEADED

The applicants a quo approached the court in terms of section 85(1)(a) of the Constitution.

The procedure in section 85(1)(a) of the Constitution is a direct enforcement procedure for the enforcement of fundamental rights and liberties. It is meant to secure constitutional remedies.

It cannot be invoked in respect of non-constitutional remedies.

The applicants founded their locus standi to institute legal proceedings in terms of section 85(1)(a) of the Constitution on the premise of an allegation of the violation of the right to property as enshrined under section 71 of the Constitution.

What the applicants filed in the High Court can best be described as a hybrid application.

They claimed locus standi to approach the court for a declaration of invalidity on an alleged violation of a right and in that respect invoked section 85(1) of the Constitution.

A court that is approached in terms of section 85(1)(a) of the Constitution cannot exercise its jurisdiction on any other matter besides matters that seek redress for direct and actual infringements or likely infringements of fundamental rights and freedoms set out in the Bill of Rights.

Thus, where the court is approached in terms of section 85(1)(a) of the Constitution, it must not involve itself in the determination of non-constitutional issues.

It is evident that the proceedings a quo went beyond the enforcement of fundamental rights and freedoms contained in Chapter 4 of the Constitution.

It is common cause that the application for constitutional relief was conjoined with a cause of action based on non-constitutional relief.

It is also not in dispute that the applicants sought the declaration of invalidity of the Exchange Control Directive on the basis that it violated the right to property as enshrined in section 71(2) of the Constitution.

Further to this, a declarator was prayed for to the effect, that, the conversion of USD142,000 to RTGS142,000 was unconstitutional and invalid as it violated section 71(2) of the Constitution.

The order sought further included a declarator to the effect, that, the Directive was grossly unreasonable and ultra vires section 35(1) of the Exchange Control Regulations, Statutory Instrument 109 of 1996. This relief is not available under section 85(1) of the Constitution upon which they sought to establish locus standi for approaching the court a quo.

The order was not concerned with a violation of a constitutional right.

It has been emphasised in a plethora of judgments of this Court, that, once a litigant pleads their locus standi under the ambit of section 85 of the Constitution, the application must meet certain requirements.

The specificity in pleading locus standi is of prime consideration.

In Zimbabwe Human Rights Association v Parliament of Zimbabwe and Ors CC06-22, PATEL JCC advanced the following:

“In essence, what the applicant has purported to do is to proceed under two mutually exclusive provisions of the Constitution, viz. section 85(1) and section 167(2)(d). This course of action was pointedly frowned upon in Central African Building Society v Stone & Ors SC15-21, at p.17, para. 38, where GWAUNZA DCJ observes that:

'..., an application under section 85 of the Constitution should not be raised as an alternative cause of action...,. Section 85(1) is a fundamental provision of the Constitution and an application under it, being sui generis, should ideally be made specifically and separately as such.'”...,.

See also Law Society of Zimbabwe v Parliament of Zimbabwe & Ors CC10-23.

In casu, it is evident that the applicants conflated the constitutional application under section 85 of the Constitution with a non-constitutional cause of action.

The link between the two is impermissible, in that, in conjunction with a declaration of invalidity, they sought a declaration that Exchange Control Directive No. R120/2018 be declared grossly unreasonable and ultra vires its enabling provision, section 35(1) of the Exchange Control Regulations 1996.

The latter did not envisage the enforcement of a fundamental right under section 85(1) of the Constitution as pleaded in the founding affidavit establishing locus standi.

I have no hesitation in stating, that, not only is this impermissible but the procedure adopted was grossly irregular.

Further to the above, the applicants application, purportedly made in terms of section 85(1)(a) of the Constitution, did not specifically plead an infringement of any of their fundamental rights and freedoms.

The law is settled, that, in constitutional litigation, the constitutional issue to be decided by the court must be specifically pleaded. The requirement of specificity in constitutional litigation cannot be overlooked.

The procedural requirement for specificity in pleading requires that the challenged legislation and the grounds of such challenge be properly raised in pleadings.

There is need for accuracy in pleading in constitutional litigation and the required accuracy in pleading cannot be overlooked. It is critical in the determination of the issues to be decided by the court: see Philips & Ors v National Director of Public Prosecutions 2006 (1) SA 505 (CC)…, and Shaik v Minister of Justice & Constitutional Development 2004 (3) SA 599.

The failure to plead a cause of action with the required accuracy and specificity in the matter a quo was fatal.

Despite the irregularity and the inherent conflict, the court a quo found that the Directive was not grossly unreasonable but still granted an order declaring it ultra vires the Exchange Control Regulations.

It also found, that, the Reserve Bank was empowered to issue Directives under the Regulations.

By eschewing fundamental constitutional principles, the court a quo determined an application that was improperly placed before it.

It must be reiterated that issues regarding the cause of action are rooted in law and not abstract personal convictions.

Thus, the court a quo, by failing to recognise the sui generis nature of an application whose genesis emanates from section 85 of the Constitution grossly misdirected itself by assuming jurisdiction over two conflicting causes of action, the determination of which was reposed under different species of the law.

On this score alone, the order granted by the court a quo cannot be confirmed by this Court as the conflated application was not properly before it.

As regards the Directive, the court a quo considered both issues, the constitutional and the non-constitutional.

First, it declared paragraph 2.5 and paragraph 2.6 of the Directive as being ultra vires section 35(1) of the Exchange Control Regulations S.I.109/1996. It then proceeded to set the provisions aside.

Effectively, therefore, the paragraphs in question were no longer of any force or effect.

Unlike a declaration of constitutional invalidity, a declaration that a provision is ultra vires its parent statutory provision does not require confirmation by this Court.

It stands to reason, therefore, that, once the court a quo made this declaration, the paragraphs were no longer law. They ceased to exist.

Notwithstanding the declaration of invalidity, and the consequential setting aside of the paragraphs in question, the court a quo then proceeded to declare that the same paragraphs violated section 71 of the Constitution.

The court could not logically declare invalid a provision that it had already set aside....,.

The applicants approached the court in terms of section 85(1)(a) of the Constitution. The procedure contemplated in section 85 of the Constitution is a direct enforcement procedure for the enforcement of fundamental rights and freedoms.

The provision cannot be invoked in respect of non-constitutional remedies.

The cause of action seeking the invalidation of the Exchange Control Directive R120/2018 on the basis that it is ultra vires section 35(1) of the Exchange Control Regulations 1996 had no relationship with the protection and enforcement of fundamental rights and freedoms contained in the Declaration of Rights.

The same applies to the cause of action seeking the payment of USD142,000.

To the extent that the application comprised two composite causes of action, on the one hand, constitutional and the other non-constitutional, it was therefore improperly before the court a quo.

By a combination of imprecise pleading and improper conflation of constitutional and non-constitutional issues in one application, there was no valid constitutional application before the court a quo.

The fact that it was contended by the applicants that the Exchange Control Directive R120/2018 is ultra vires section 35(1) of the Exchange Control Regulations 1996 is evidence that there was no ripe constitutional question.

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD
Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

This is an application for direct access to this Court.If the application is granted, it is the applicant's intention to approach this Court in terms of section 85(1)(a) of the Constitution of Zimbabwe, alleging and arguing that a judgment of the Supreme Court, handed down on 31 December 2020, infringed ...

This is an application for direct access to this Court.

If the application is granted, it is the applicant's intention to approach this Court in terms of section 85(1)(a) of the Constitution of Zimbabwe, alleging and arguing that a judgment of the Supreme Court, handed down on 31 December 2020, infringed his dual rights to equal protection and benefit of the law and to a fair hearing before an independent and impartial court....,.

I start with the allegation that the failure by the court a quo to determine the issues that were before it infringed the applicant's right to equal protection and benefit of the law as guaranteed by section 56(1) of the Constitution of Zimbabwe.

After hearing the parties at the first hearing, this Court directed the parties to make further submissions on the content of the fundamental right that is guaranteed under section 56(1) of the Constitution.

This was so because, whilst in his papers filed of record the applicant had alleged that his rights as protected by this section had been violated, in oral argument, he appeared to be relying entirely on the right to due process as guaranteed by section 18(1) of the repealed Constitution.

We are indebted to counsel for the additional submissions and oral arguments....,.

Section 18 of the repealed Constitution provided that:

“18 Provisions to secure protection of law

(1) Subject to the provisions of this Constitution, every person is entitled to the protection of the law.”

The content of the right, as provided for by the section, was interpreted to be nothing more than the right to demand and be protected by the due process of the law. It thus protected every person against arbitrary decisions that do not follow the laid down precepts of the law - be they substantive or adjectival: see Martin v Attorney-General 1993 (1) ZLR 153 (SC); Mawarire v RG Mugabe and Others CC01-13 and Matiashe v Mahwe N.O. and Another CC12-14.

With the adoption of the Constitution, the right to the protection of the law was re-enacted and provided for in section 56.

It is common cause that section 56(1) is differently worded from section 18 of the repealed Constitution....,.

Section 56(1) of the Constitution provides as follows:

“56 Equality and non-discrimination

(1) All persons are equal before the law and have the right to equal protection and benefit of the law.”

The right to the protection and benefit of the law, as guaranteed by section 56(1), has been construed narrowly: see Nkomo v Minister of Local Government, Rural and Urban Development and Others 2016 (1) ZRL 113 (SC) and Marx Mupungu v Minister of Justice, Legal & Parliamentary Affairs and Others CC07-21.

Thus, instead of the right to the protection and benefit of the law being a right to due process simpliciter, the right guaranteed by section 56(1) of the Constitution has been modified or discoloured, as it were, by the insertion of the word “equal” in the provision immediately preceding the right.

An applicant seeking to rely on the right must not only allege and prove non-observance of due process but now bears the additional onus of alleging and ultimately showing that other persons similarly positioned are afforded the protection and benefit of the law that he or she craves.

In Nkomo v Minister of Local Government, Rural and Urban Development and Others 2016 (1) ZRL 113 (SC), it was held that section 56(1) of the Constitution provides equality to all persons before the law and the right to receive the same protection and benefit afforded by the law to “persons in a similar position.”…,.

Similarly, in Marx Mupungu v Minister of Justice, Legal & Parliamentary Affairs and Others CC07-21 it was observed, in part, that:

“…,. What this provision means is that all persons in a similar position must be afforded equality before the law and the same protection and benefit of the law.”…,.

I do not read the above cases as having changed the core content of the right to the protection of the law as upheld by this Court prior to 2013.

I read the above cases as qualifying that right, or, as PATEL JCC put it in Marx Mupungu v Minister of Justice, Legal & Parliamentary Affairs and Others CC07-21 as simply “narrowing” the scope of the enjoyment of the right.

Put differently, I do not read the judgments of this Court as requiring more than a specific averment and a demonstration by the facts alleged in the founding papers, that, similarly placed litigants were afforded the right that the applicant wishes to assert.

Viewed in this sense, the averment will, in the converse, mean that denying the applicant the right in such circumstances will amount to denying him or her equal treatment before the law. This will obviously constitute a violation of the right embodied in the section.

I am fortified in making this finding from the words of ZIYAMBI JCC in Nkomo v Minister of Local Government, Rural and Urban Development and Others 2016 (1) ZLR 113 (SC)…, where her Ladyship cites with approval the dicta in Van der Walt v Metcash Trading Ltd 2002 (4) SA 317 (CC) to the effect, that, the South African equivalent of our section 56(1) of the Constitution means that all persons in a similar position must be afforded the same right to access the courts and to the same fair and just procedures with regards to such access.

In finding against the applicant in that matter, her Ladyship continued:

“Clearly, the guarantee provided by section 56(1) is that of equality under the law. The Applicant has made no allegation of unequal treatment or differentiation. He has not shown that he was denied protection of the law while others in his position have been afforded such protection. He has presented the Court with no evidence that he has been denied equal protection and benefit of the law….,. In short, the applicant has come nowhere near establishing that his right enshrined in section 56(1) of the Constitution has been infringed. He is therefore not entitled to a remedy.”...,.

I am aware that the requirement to specifically plead and ultimately prove that other persons similarly placed were protected by and benefited from the law might appear superfluous and pedantic...,.

However, the position of the law is that it is necessary that in all instances where the right is invoked, the equality before the law and the equal treatment under the law that the section envisages is specifically pleaded and ultimately proved, even if, in some instances, the proof thereof will be common cause or easy to furnish....,.

The applicant maintained that the position of this Court, holding that pleading unequal treatment or differentiation whenever this right is invoked is a requirement, was erroneous and ought to be set aside by a full Bench of the Court.

Put differently, he submitted that this Court ought to reverse itself.

In pressing his argument in this regard, the applicant made no attempt to distinguish the facts of this matter from the cases cited above that give a narrow interpretation of the right guaranteed by section 56(1) of the Constitution.

He did not seek to side-step the ratio decidendi of those cases but simply attacked such as being erroneous.

He thus did not lay any possible basis upon which this Court can contemplate revisiting the position that it has taken in interpreting the provisions of section 56(1) of the Constitution.

He cannot be helped.

It is common cause that the applicant did not plead his case with the requisite particularity that would have brought him within the ambit of the alleged breach of the fundamental right protected under section 56(1) of the Constitution.

CC09-23 : TENDAI MASHAMANDA vs BARIADE INVESTMENTS (PVT) LTD and PUWAYI CHIUTSI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT and ELLIOT ROGERS and ATTORNEY GENERAL ZIMBABWE
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

This is an application for direct access to this Court made in terms of Rule 21 of the Constitutional Court Rules 2016 ("the Rules")....,.Applications of this nature are regulated by the rules of this Court. The applicant therefore has to first satisfy the requirements as set out in Rule 21(3) ...

CC12-23 : DIVINE HOVE vs PARLIAMENT OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

At the end of proceedings in this matter, by unanimous decision, the Court issued an order as follows:

“1. It is declared that in respect of S.I.144 of 2022, which was published in the Gazette dated 19 August 2022, the respondent failed to fulfil its constitutional obligation under section 152 of the Constitution.

2. The respondent is ordered to comply with its constitutional obligation under section 152 of the Constitution by not later than close of business on the 16th of June 2023.

3. There shall be no order as to costs.

4. Reasons for this order are to follow in due course.”

The following are the reasons for the order handed down by the full bench of this Court.

The Background

The applicant is the President of a political party known as the Nationalists Alliance Party and is a member of the Political Actors Dialogue (“the POLAD”). He stood for election to the office of President during the 2018 harmonised elections.

The respondent is the Parliament of Zimbabwe, the constitutional organ reposed with primary law-making authority in Zimbabwe.

The petition before this Court is centred around the allegation, that, the respondent failed to fulfil its purported constitutional obligation of examining every statutory instrument published in the Gazette and considering whether any provision of the statutory instrument contravened any provision of the Constitution.

More specifically, this contention relates to the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), Statutory Instrument 144 of 2022 (S.I.144/22), which was published in the Gazette dated 19 August 2022.

The impugned statutory instrument was published by the Zimbabwe Electoral Commission (hereinafter “ZEC”) on the aforesaid date.

It increased the nomination fee for aspiring presidential candidates in the imminent 2023 general elections and beyond, from US$1,000 to US$20,000. Similarly, the nomination fee for aspiring candidates for National Assembly and Senate elections was increased from US$50 to US$1,000.

It is these hefty and apparently prohibitive hikes, and, in particular, the perceived procedural irregularities that followed the promulgation of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), SI144 of 2022 that drew the ire of the applicant.

In his founding papers before this Court, the applicant averred, that, as an ordinary citizen with aspirations to run for election as President, he would not be able to afford the US$20,000 nomination fee. He added that none of the members of his political party would be able to afford US$1,000 to run for public office as Members of Parliament.

Against this background, the applicant sought an order declaring that Parliament failed to fulfil its constitutional obligation in terms of section 152(3)(c) of the Constitution.

It was contended, that, the respondent had an immutable obligation to examine every statutory instrument published in the Gazette and consider whether any provision of the statutory instrument contravened any provision of the Constitution.

The applicant alleged, that, the respondent had failed to discharge this obligation in respect of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I. 144 of 2022.

He based his standing on the belief that every citizen of Zimbabwe has automatic standing to challenge any failure by an institution of the State to fulfil a constitutional obligation.

It was the applicant's view, that, the use of the words 'examine' and 'consider' in the cited constitutional provision required the respondent to take a serious view of the imperative to protect the supreme law of the land.

In this regard, it was contended that the respondent failed to fulfil its obligation in that it did not treat the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I. 144/22 in accordance with the provisions of section 152(3)(c) of the Constitution, following which it should have produced a report on the constitutionality of the statutory instrument.

Alternatively, it was argued that the fact that the respondent did not find that the statutory instrument infringed the rights of citizens provided for and protected by section 67 of the Constitution was evidence of a failure to “examine” or “consider” the impugned Regulations within the contemplation of section 152(3) of the Constitution.

The appellant took aim at the respondent's perceived “lackadaisical” approach to the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), SI 144/22, which conduct was alleged to have failed to meet the requirement to 'examine' and “consider” within the meaning of section 152(3)(c) of the Constitution.

The applicant averred, that, no reasonable Parliament acting in compliance with the mandatory obligation under section 152(3)(c) of the Constitution would have failed to consider that the Regulations in the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1),Statutory Instrument 144/22 were patently unconstitutional for infringing the electoral and civil rights of citizens under section 67 of the Constitution.

From the applicant's perspective, had the respondent performed its constitutional obligation, the Regulations ought to have been repealed or referred to this Court pursuant to paragraph 9 of the Fifth Schedule to the Constitution.

The requirement to pay the nomination fee, expressly in United States Dollars, was also stated to be an infringement of the rights contained in section 67 of the Constitution.

On the foregoing basis, the applicant sought the following order:

“1. That, it be and is hereby declared that in respect of Statutory Instrument 144 of 2022 which was published in the Gazette dated 19th August 2022, the Respondent (Parliament of Zimbabwe) failed to fulfil its constitutional obligation under section 152(3)(c) of the Constitution of examining every statutory instrument published in the Gazette and considering whether any provision of the statutory instrument contravenes any provision of the Constitution.

2. As a consequence arising from paragraph 1 of this order, that it be and is hereby declared that the Electoral (Nomination of Candidates) (Amendment) Regulations, 2022 (No.1): Statutory Instrument 144 of 2022 are null and void and of no force or effect.

3. There shall be no order as to costs.”

The respondent duly opposed the application.

Its opposing affidavit was deposed to by Jacob Mudenda, the Speaker of the National Assembly.

He refuted the allegation, that, the respondent had failed to fulfil a constitutional obligation. According to the respondent, the provisions of section 152(3)(c) of the Constitution were unambiguous — the obligation to examine every statutory instrument which had been published in the Gazette lay squarely on the Parliamentary Legal Committee (hereinafter “the PLC”).

Accordingly, the said provisions did not impose a constitutional obligation on Parliament itself, as was alleged by the applicant.

Contrary to the applicant's averments, the respondent submitted that the Parliamentary Legal Committee (PLC) did consider the Regulations on 26 September 2022, and, thereafter, resolved “not to issue a non-adverse certificate until they have had a meeting with the Zimbabwe Electoral Commission concerning the fees in Statutory Instrument 144 of 2022.”

Consequently, the Clerk of Parliament wrote a letter, on the same day, to the Zimbabwe Electoral Commission (ZEC) inviting it to appear before the Parliamentary Legal Committee (PLC).

By letter dated 28 September 2022, the Chief Elections Officer of the Zimbabwe Electoral Commission (ZEC) advised the Clerk of Parliament that ZEC was constrained in discussing the matter as it was sub judice. According to the respondent, this was the sole reason that the Parliamentary Legal Committee (PLC) had postponed its consideration of the Regulations until the High Court had passed its determination on their legality.

All in all, the respondent denied that the Parliamentary Legal Committee (PLC) had breached the Constitution in any way.

In any event, the respondent assiduously sought to distance itself from assuming responsibility for the Parliamentary Legal Committee's conduct. The respondent maintained, that, an alleged omission or breach by the PLC did not amount to failure by Parliament itself to fulfil a constitutional obligation.

Submissions by Counsel

Counsel for the applicant submitted, that, the applicant's locus standi was founded on section 2 of the Constitution.

It was described as the supremacy clause which provided a basis for the applicant to vindicate the supremacy of the Constitution as a citizen. He submitted, that, the obligation in terms of section 152(3)(c) of the Constitution was imposed on Parliament by virtue of being specifically imposed on the Parliamentary Legal Committee (PLC).

He referred to decisions of this Court from which it could be inferred that the actions of the Parliamentary Legal Committee (PLC) were attributable to the respondent itself.

He added that the Parliamentary Legal Committee (PLC), being a component of Parliament, was a functionary of the respondent and thus the cited obligation fell squarely upon the latter.

It was also contended, that, there were concessions on record by the respondent to the effect that it had not complied with its constitutional obligation.

Counsel for the applicant insisted that the said obligation could not be delayed by pending litigation on the same issue in the High Court.

This was so despite the import of Standing Order 98(1)(e) of the National Assembly Standing Orders (Public Business) Ninth Edition 2020.

The Standing Order provides that “no member shall, while speaking to a question –
(e)…, refer to any matter on which a judicial decision is pending.”

He submitted that the Standing Order applied only in respect of non–constitutional issues.

Counsel for the applicant also argued, that, the applicant was entitled to rely on the competence of the first respondent to carry out its constitutional obligations and that any perceived failure to pursue an Administrative Law action ought not to non–suit him before this Court.

Per contra, counsel for the respondent submitted, that, the respondent had clearly fulfilled the constitutional obligation in question, contrary to the applicant's position.

He referred to minutes of the Parliamentary Legal Committee (PLC) on record as evidence that the respondent had considered the constitutionality of the impugned statutory instrument. He argued that the process thereafter was only stalled by the Zimbabwe Electoral Commission's refusal to engage the PLC due to the pendency of litigation in the High Court.

He further reasoned, that, there was no timeline for submitting the report from the Parliamentary Legal Committee (PLC) to Parliament and that any order to that effect would be an undue intrusion into its domain.

In response, counsel for the applicant maintained, that, the Parliamentary Legal Committee (PLC) had a duty to examine and report on the constitutionality of the impugned statutory instrument. The two were deemed to be concurrent obligations that could not be separated as was argued on behalf of the respondent.

In this respect, he referred to Standing Order 36(6)(d) which specifically stipulates a twenty-six day period for the Parliamentary Legal Committee (PLC) to submit its report to Parliament.

After some initial reservation, counsel for the applicant accepted, that, a mandamus by the Court would be a competent remedy, consistent with the Court's authority under section 167(2)(d) of the Constitution to interfere with the respondent's processes....,.

Compliance with the Requirements of Rule 27

Rule 27 of the Constitutional Court Rules 2016 (the Rules) sets out what must be pleaded in an application under section 167(2)(d) of the Constitution.

The founding affidavit must explicate two elements:

(i) The constitutional obligation in question that is imposed on Parliament or the President; and
(ii) That which Parliament or the President has failed to do in respect of the constitutional obligation.

This Court has also prescribed, that, these two aspects must be set out with reasonable precision.

The litigant must plead his or her case with sufficient clarity so that both the Court and the other parties know what is being alleged: see Mliswa v Parliament of the Republic of Zimbabwe CC02-21; Mushoriwa & Ors v Parliament of Zimbabwe CC04-23.

In the instant case, the applicant has identified the constitutional obligation that has not been fulfilled in fairly clear terms. This is the obligation imposed upon the Parliamentary Legal Committee (PLC), in terms of section 152(3)(c) of the Constitution, to examine every statutory instrument published in the Gazette.

The applicant has also identified Parliament, through the Parliamentary Legal Committee (PLC), as the functionary that has failed to fulfil this obligation.

Lastly, this failure on the part of Parliament has been elaborated with sufficient precision and clarity.

Primarily, it is alleged that there is no report by the Parliamentary Legal Committee (PLC) demonstrating that the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I.144/22 went through the procedure prescribed by section 152(3)(c) of the Constitution.

Alternatively, it is alleged, that, even if that procedure had in fact been complied with, the failure by Parliament to find that the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), SI 144/22 infringed the rights protected by section 67 of the Constitution evidenced a failure to “examine” and “consider” it within the contemplation of section 152(3)(c) of the Constitution.

Having regard to the foregoing, it is reasonably clear that the applicant has identified an alleged breach of a constitutional obligation that is averred to have been specifically imposed upon Parliament, through the Parliamentary Legal Committee (PLC).

I am accordingly satisfied, that, the applicant has properly pleaded a justiciable causa for the hearing and determination of this matter under section 167(2)(d) of the Constitution.

Once it is established that an applicant has properly pleaded his or her case in accordance with the requirements of Rule 27 of the Constitutional Court Rules, this Court is at large to exercise its relatively broad jurisdiction under section 167(2)(d) of the Constitution.

For present purposes, what is to be considered is the procedural adequacy of the impugned law or conduct rather than the substantive validity of that law or conduct.

Thus, the question to be adjudicated and determined in casu is whether or not Parliament has followed and complied with due process in the performance of the specific obligation imposed by section 152(3)(c) of the Constitution.

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

This is a referral from the High Court (“the court a quo”) of a constitutional matter in terms of section 175(4) of the Constitution of Zimbabwe 2013 (“the Constitution”).

The question referred to this Court for determination is:

“Whether or not section 70 of the Police Act, which sets the prescription period of eight (8) months for any person to institute civil proceedings against the Police, is ultra vires section 56(1) and 69(3) of the Constitution and therefore unconstitutional.”

It seems to me that the matter ought to be struck off the roll for two reasons:

(i) The first is that the referral was improperly made. I say this because, the issue of prescription not having arisen in proceedings before the court a quo, that court could not have properly referred the matter to this Court for determination in terms of section 175(4) of the Constitution.

(ii) The second, though ancillary reason, is that the matter set down before the court a quo, at the commencement of which this referral was made, was rendered abortive following the death of the presiding Judge.

The referral of the matter to this Court suffers from these deficiencies and must, as a consequence, be struck off the roll.

The reasons for the foregoing now follow.

FACTUAL BACKGROUND

The applicant is Patricia Dengezi who operates as an informal trader. The first and second respondents are, respectively, Munyaradzi Nyamururu and Xolisan Moyo. The first respondent was employed by the second respondent as a driver of a commuter minibus owned by the second respondent. The third respondent is Champions Insurance Company (Private) Limited, the third-party insurer of the commuter minibus owned by the second respondent. The fourth and fifth respondents, respectively, are the Commissioner General of Police and the Minister of Home Affairs.

The facts of this matter are largely common cause.

The applicant was in the informal business of vending. On 17 April 2017, while selling her wares from a pavement on Chinhoyi Street, close to Robert Mugabe Avenue in Harare, she was involved in a tragic accident. In her company was her son who was aged one year and two months.

In her declaration, she stated that on that fateful day, three officers of the Zimbabwe Republic Police who were carrying out their duties along Robert Mugabe Street threatened to arrest and intimidated certain commuter minibus drivers who were driving their vehicles in the area. Consequently, the commuter minibuses haphazardly sped off, in the process, driving against oncoming traffic moving along Chinhoyi Street, which is a one-way street.

The applicant alleges, that, as a result of the unlawful actions of the Zimbabwe Republic Police, the commuter minibus that was being driven by the first respondent, though travelling in the proper vehicular direction, veered off the road, hit the applicant and “smashed” her son who was killed immediately.

On 9 April 2018, almost a year later, the applicant sued out a summons commencing action out of the High Court at Harare claiming damages arising out of the said road traffic accident.

In her declaration, she made several claims for damages against the respondents.

The applicant's case before the court a quo was that, although the accident was caused by the first respondent, it was members of the Zimbabwe Republic Police who instigated the melee that resulted in the fatal incident. She alleges that the details from the Zimbabwe Republic Police were reckless and negligent and that they ought to have realized that their unlawful actions and intimidatory behaviour would “unleash [a] foreseeable chain of events including the loss of life.”

The third (Champions Insurance Company Limited), as well as the fourth and fifth respondents (Commissioner General of Police and Minister of Home Affairs), entered appearance to defend, and, in their pleas, denied liability.

The third defendant essentially pleaded that it has no knowledge of the facts forming the applicant's cause of action. On their part, the fourth and fifth respondents have pleaded that the actions of the officers of the Zimbabwe Republic Police were not unlawful and that they were not responsible for the death of the applicant's minor child.

That was the essence of their plea.

They said nothing about prescription and whether the claim should be dismissed on that basis. In their separate pleas, they simply prayed that the claim be dismissed with costs.

The applicant replicated to the pleas.

Following that replication, a pre-trial conference was convened before a Judge of the court a quo. For the purpose of that pretrial conference, the fourth and fifth respondents proposed three issues for determination in their pre-trial minute filed a quo. The proposed issues for determination were stated to be:

“1. Whether or not the plaintiff's claim has prescribed in terms of section 70 of the Police Act [Chapter 11;10].

2. Whether or not the police officers negligently caused the accident in question.

3. Whether or not the plaintiff is entitled to damages which are claimed.”

The record of the proceedings of the court a quo reveals that on 16 May 2019, following a pre-trial conference, three issues were referred for trial. These were:

(i) Whether the police officers controlling the traffic along Robert Mugabe Avenue were negligent;
(ii) If so, the quantum of damages payable by the State; and, lastly
(iii) The extent of damages recoverable from the insurance company.

It bears mention at this stage, that, the parties did not regard as an issue for determination the question whether or not the applicant's claim had prescribed in terms of section 70 of the Police Act [Chapter 11:10] (“the Police Act”).

Just before the trial commenced in the court a quo, on 14 February 2022, following what appear to have been informal discussions with the fourth and fifth respondents counsel, the applicant filed an affidavit in support of a request to refer a matter to this Court in terms of section 175(4) of the Constitution.

Therein, the applicant alleged that two issues had arisen, namely:

(i) The constitutionality of section 23(3)(b) and (c) of the Road Traffic Act [Chapter 13:01] (“the Road Traffic Act”); and of
(ii) Section 70 of the Police Act.

The applicant pertinently averred that:

“24. During the course of proceedings today, despite the fact that the Commissioner General and the Minister of Home Affairs had not insisted on prescription, today, they insisted that my matter was prescribed.

25. I could not bring legal proceedings within six months as I was ill, and, in any event, mourning the loss of my child.

26. I however contend, that, section 70 of the Police Act is clearly unconstitutional.

27. Why, for instance, should the police have protection when every other defendant, including the President or large corporations like Delta or Econet, do not have the same six months protection.

28. Clearly, section 70 is unconstitutional and I make reference to the judgment of Justice Tsanga in another related matter.”

Two days later, on 16 February 2022, the parties then filed what they termed a Statement of Agreed Facts “for reference to the Constitutional Court in terms of Rule 108(4) of the High Court Rules, SI 202/2021.”

Therein, the parties outlined the facts that they considered to be “common cause”.

However, contrary to the fourth and fifth respondents plea, to which reference has already been made, the parties purported to agree that “the fourth defendant, [the] Commissioner General of Police, had pleaded prescription based on the fact that the summons was issued way after the 8 months provided for by section 70 of the Police Act.”

The request for the referral of the questions relating to the constitutionality of section 23(3)(b) and (c) of the Road Traffic Act and section 70 of the Police Act was heard by the court a quo, per MAKOMO J, on 14 May 2022, on the basis of the applicant's affidavit filed in support of the said request and the Statement of Agreed Facts.

The reasons for the court a quo's determination on the request were delivered on 10 October 2022.

The court a quo concluded, that, the request to refer the question relating to the constitutionality of section 70 of the Police Act was not frivolous and vexatious and accordingly granted the request. However, the request relating to the question of the constitutionality of section 23(3)(b) and (c) of the Road Traffic Act was found to be frivolous and vexatious and was therefore refused.

Consequently, the court a quo only referred the question relating to the constitutionality of section 70 of the Police Act to this Court for determination and stayed the proceedings before it pending the determination of the question referred to this Court.

Sadly, on 25 December 2022, before this matter could be heard and finalised by this Court, Mr Justice MAKOMO, the presiding Judge a quo, passed on.

APPLICANT'S SUBMISSIONS BEFORE THIS COURT

At the commencement of the hearing, the Court directed the parties to advance submissions on the question whether or not the referral was properly made.

Counsel for the applicant submitted, that, the matter was properly referred to this Court.

This, so he submitted, was because, if a constitutional matter arises in non-constitutional proceedings before a lower court, the lower court has no jurisdiction to itself determine the constitutional matter but must refer the matter to this Court.

In counsel for the applicant's view, the fact that the defence of prescription had not been pleaded by the respondents, as defendants, was not a bar to the raising of a constitutional matter.

Further asked during oral submissions whether the death of the presiding judge a quo had any effect on the validity of the referral, counsel for the applicant contended, that, the Judge a quo had become functus officio on the referral and that his judgment referring the constitutional question to this Court remained extant.

As such, the referral can properly be determined by this Court, and, thereafter, the matter can proceed before another judge of the High Court for a final determination of all the issues raised in the pleadings before the court.

FOURTH AND FIFTH RESPONDENTS SUBMISSIONS BEFORE THIS COURT

Counsel for the fourth and fifth respondents submitted, that, although no evidence had been led before the late Mr Justice MAKOMO, the proceedings had indeed commenced before him. She stated that the “special plea” on prescription was raised in the fifth respondent's pre-trial conference minute but conceded that it was not identified as an issue requiring determination at the trial.

On whether the question relating to the constitutionality of section 70 of the Police Act had arisen before the court a quo, it was her submission, that, the issue indeed arose before MAKOMO J.

ISSUES ARISING FOR DETERMINATION

The main issue that arises before this Court is whether the court a quo properly referred the matter to this Court. Put otherwise, this Court essentially has to determine whether or not section 175(4) of the Constitution, regulating the referral of constitutional matters to this Court, was complied with.

A further but incidental issue that arises from the facts of this case is whether the passing on of MAKOMO J had any effect on the referral. Put another way, the question is whether the referral, in any event, became a nullity following his demise.

This Court, in various decided cases, has stressed, that, in respect of matters referred in terms of section 175(4) of the Constitution, it is always obliged to determine whether a referral was properly made.

If a referral is not properly before the Court, it will be disposed of, without further ado, on that ground alone: see S v Nyathi CC16–19…,.; Muhala & Others v Mukokera 2019 (1) ZLR 294 (CC); Nyagura v Ncube & Others 2019 (1) ZLR 521 (CC)…,.; and S v Mwonzora & Others CC09–15…,.

Any question as to whether or not a referral was made in accordance with the provisions of the Constitution and is valid is no doubt an important question that this court must determine.

In the past, this Court has held that it has no discretion to condone a departure from the Constitutional provisions regulating the referral of constitutional matters: see Mukoko v Commissioner General of Police & Others 2009 (1) ZLR 21 (S)…,. and S v Kisimusi & Others CC01–14…,.

CC10-21 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY (ARDA) and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

This is an application for direct access to this Court made in terms of section 167(5) of the Constitution of Zimbabwe 2013 (“the Constitution”) as read with Rule 21 of the Constitutional Court Rules 2016 (“the Rules”).

The applicant intends to approach the Court, in terms of section 85(1) of the Constitution, seeking an order that his rights, as enshrined in the Constitution, were infringed by the first respondent's Non-Executive Board members, its Board, the arbitrators awards, Labour Court judgments, and the Supreme Court.

The rights so infringed being:

(i) The right to equal protection of the law in terms of section 56(1) of the Constitution;

(ii) The right to privacy in terms of section 57(c) and (e) of the Constitution;

(iii) The right to access information in terms of sections 62(2) and 62(3) of the Constitution;

(iv) Labour rights in terms of sections 65(1) and 65(4) of the Constitution;

(v) The right to administrative justice in terms of sections 68(1) and 68(2) of the Constitution;

(vi) The right to a fair hearing in terms of sections 69(2) and 69(3) of the Constitution; and

(vii) The right to property in terms of sections 71(3) and 71(4) of the Constitution.

At the commencement of the hearing, counsel, on behalf of the Attorney-General, took a preliminary point regarding the citation of the Attorney General as a party to these proceedings.

It was her view, that, there was no law being impugned in the application, and that, as a consequence, the joinder of the Attorney-General as a party was irregular. She applied for his removal as a party to the proceedings.

The applicant was of the view that the Rules required his citation, but, was constrained to concede that the citation had been done in error. Counsel, on behalf of the first respondent, did not object to the application, which was granted by consent.

The Attorney General was, therefore, removed from the proceedings and excused from further participation.

This left one respondent as a party, and, any reference to the respondent will be in respect of the first respondent herein.

FACTUAL BACKGROUND

The applicant was formerly employed by the respondent as its General Manager cum Chief Executive Officer. On 26 February 2009, he was sent on special leave, and, on 19 May 2009, he was notified by the respondent of its decision to terminate his employment.

Aggrieved by the decision to terminate his employment, the applicant filed a complaint of unfair dismissal. The matter proceeded to arbitration. The arbitrator found in his favour, set aside the dismissal, and ordered the reinstatement of the applicant with effect from the date of his dismissal.

Thereafter, negotiations for reinstatement having failed, the matter was, again, referred to the arbitrator for quantification of damages in lieu of reinstatement. The arbitrator quantified his award for damages in lieu of reinstatement and ordered the respondent to pay the same.

The applicant, being dissatisfied with the arbitrator's award, appealed to the Labour Court on several grounds pertaining to the question of his reinstatement, the date of termination of his employment, his correct monthly salary, and his entitlement to contractual benefits.

The respondent, in turn, cross-appealed, defending the propriety of its decision not to reinstate the applicant and challenged the arbitrator's award of punitive damages, and, further to this, his failure to deduct certain amounts allegedly owed by the applicant to the respondent.

The Labour Court dismissed the appeal and partially allowed the cross appeal to the extent of setting aside the arbitrator's award of punitive damages.

Consequently, the applicant appealed to the Supreme Court, and, the Court ordered a minor favourable adjustment to the contractual benefits that the applicant was entitled to. The matter was thereafter remitted to the arbitrator to deal with the adjustment.

Before the arbitrator, the applicant raised several preliminary issues, which were dismissed. The applicant proceeded to appeal against that interim award to the court a quo.

That appeal was struck off the roll on the basis that he had improperly appealed against an interim order.

Aggrieved, the applicant filed an application for leave to appeal to the Supreme Court. The matter was set down for the hearing of the application for leave to appeal at which stage the applicant made an oral application for the joinder to those proceedings of an application for referral to this Court.

The application for joinder was dismissed, and the two matters were heard separately.

In its judgment, viz, Erickson Mvududu v Agricultural and Rural Development Authority LC/H/23/21 dated 26 March 2021, the Labour Court made a finding that the application for referral was frivolous and vexatious. The application for leave to appeal to the Supreme Court was still pending at the time of the hearing of this application.

It proceeded to dismiss the application for referral.

Aggrieved by the dismissal of the referral application, the applicant filed the present application on 21 April 2021.

Even though he was the party bringing the suit, contrary to settled procedural principle, the applicant raised a number of preliminary issues for determination.

He averred, in limine, that, the respondent had no authority to terminate his employment, to appoint, suspend, or discharge him, to pay such remuneration and allowances to him, and to grant such leave of absence to him, being a Board member in terms of the Agricultural and Rural Development Authority Act [Chapter 18:01] (“the Act”).

As such, he submitted that the arbitrator, and all courts involved in the matter, ought not to have granted audience to the respondent without first determining the issue of its locus standi in judicio.

In so far as the judgment of the Labour Court is concerned, the applicant contends that the decision violates his right as enshrined in section 56(1) of the Constitution. He avers, that, the conclusion that his application was frivolous or vexatious, was, in itself, a violation of the Constitution.

His argument is that the conclusion by the Labour Court, that, the decision of the Supreme Court on the matter could not be challenged was outside the scope of sections 44 and 45 of the Constitution.

He contended, that, where a court misconstrues a law, applies it incorrectly, or acts outside the law, there exists a prima facie infringement of the right to equal protection of the law.

It was the applicant's contention, that, the existing judgments in this matter were obtained through fraudulent misrepresentation of facts by the respondent who lied to the courts and misrepresented to the courts that it had powers to terminate the applicant's employment when it did not have such powers. In that regard, he alleged that there was no termination in the first place.

As such, he alleged that the application was neither frivolous nor vexatious as found by the Labour Court.

The applicant, therefore, submitted that his application enjoyed prospects of success as the Board, which included him, was not the appointing authority, and, therefore, had no powers to terminate or discharge him, neither did the respondent.

He also contended, that, his salary was incorrectly calculated and that the courts misconstrued the law or acted outside the law to the extent that they rendered improper decisions.

It is on this premise that the applicant argued that his rights had been infringed.

He submitted, that, he has no other remedy and stated that there was no constitutional matter before the Supreme Court; hence there was no room to appeal.

The application was opposed by the respondent.

It averred, that, the present application for direct access was improper as there was an application for referral to the Constitutional Court that was dismissed by the Labour Court, which raised similar issues to the ones that the applicant was now raising.

It was also argued, that, the present application did not raise any constitutional issues but that the essence of the application was to seek the re-opening of the labour issues between the parties, which have been dealt with conclusively up to the highest court of the land.

It was further contended, that, in the draft order of the intended substantive application, what the applicant was seeking was the setting aside of all decisions and payment of alleged arrear salaries and benefits, thereby indirectly seeking reinstatement.

It was submitted that issues to do with unlawfulness or otherwise of the termination of the applicant's employment contract, and the remedy therefor, had already been determined to finality by the Supreme Court and hence the matter was now res judicata.

In that regard, the respondent submitted that the application was frivolous and vexatious, and, further to that, it was not in the interests of justice that it be granted as it did not enjoy any prospects of success.

It did not raise constitutional issues.

It was also submitted, that, in all proceedings leading up to the Supreme Court, the applicant never, at any stage, challenged or disputed the respondent's standing in the proceedings.

Lastly, it was averred that the applicant had another remedy, which is to seek the enforcement of the damages which he was awarded for the alleged unfair dismissal.

In the notice accompanying the present application for direct access, the applicant makes the statement, that, he is seeking leave following upon the dismissal of his application for referral of a constitutional question to the Court.

It becomes pertinent, therefore, to determine whether or not this is the type of application contemplated by law consequent to a dismissal of an application for referral, and, if so, whether or not the application as currently framed, is properly before the Court.

Whether this matter is properly before the Court

The Labour Court had before it an application for the referral of alleged violations of the applicant's rights by all the parties and entities mentioned above. The facts upon which the application for referral was based are identical to those alleged in the application for direct access.

In view of the procedure adopted by the applicant, it becomes necessary, for the sake of completeness, that, the relief sought before the Labour Court, and this Court, be set out in full.

The constitutional issues that the applicant sought to be referred were the following:

1. That, the Non-Executive Board members, the respondent's Board, or the respondent had no and have no locus standi and have no right to be heard in this court in terms of sections 4, 6, 7, 8, 9, 11, 13, 23, 20(1) First Schedule [section 21(1) (sic)] – POWERS OF AUTHORITY, paras 12 and 33 of the Agricultural and Rural Development Authority Act [Chapter 18:01] as read with section 5 of Statutory Instrument 15 of 2006 to take any action it took in this matter.

The Arbitrators awards, Labour Court judgments and Supreme Court judgment are nullities at law.

The Non-Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts are infringing the appellant's fundamental rights as enshrined in sections 11 and 18(1) of the former Constitution of Zimbabwe and sections 3(1)(a), 3(1)(b), 3(1)(c), 3(1)(h), 44(2), 47, 56(1), 57(c), 65(1), 65(4), 68(1), 68(2), 71(3), 71(4), 85(1), and 165(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

2. The Non-Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts have no authority to terminate the applicant's contract of employment in terms of sections 23, 20(1) First Schedule [section 21(1)] (sic) – POWER OF AUTHORITY, paras 12 and 33 of the Agricultural and Rural Development Authority Act [Chapter 18:01] as read with section 5 of Statutory Instrument 15 of 2006.

The Non Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts are infringing the appellant's fundamental rights as enshrined in sections 11 and 18(1) of the former Constitution of Zimbabwe and sections 3(1)(a), 3(1)(b), 3(1)(c), 3(1)(h), 44(2), 47, 56(1), 57(c), 57(e), 62(2), 62(3), 65(1), 65(4), 68(1), 68(2), 68(3), 71(3), 71(4), 85(1), and 165(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

3. The Non-Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts have no authority to unilaterally refuse and endorse the refusal to reinstate the applicant in terms of section 89(2)(c)(iii) of the Labour Act [Chapter 28:01], sections 23, 20(1) First Schedule [section 21(1) (sic) – POWERS OF AUTHORITY, paras 12 and 33 of the Agricultural and Rural Development Authority Act [Chapter 18:01] as read with section 5 of Statutory Instrument 15 of 2006.

The Non Executive Board members, the respondent, the Arbitrators and the courts are infringing the appellant's fundamental right as enshrined in sections 11(a) and 18(1) of the former Constitution of Zimbabwe and section 56(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

4. The Non-Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts have no power to violate the applicant's right to protection of the law by ordering quantification of damages without a legal termination of the applicant's contract of employment.

The Non-Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts are infringing the appellant's fundamental rights as enshrined in section 20(1) First Schedule [section 21(1) (sic)] – POWERS OF AUTHORITY, paras 12 and 33 of the Agricultural and Rural Development Authority Act [Chapter 18:01]; sections 6 and 7 of the Labour Act [Chapter 28:01]; section 5 of Statutory Instrument 15 of 2006; sections 11(a), 16(1), 16(3) and 18(1) of the former Constitution of Zimbabwe and sections 3(1)(a), 3(1)(b), 3(1)(c), 3(1)(h), 44(2), 47, 56(1), 57(c), 57(e), 62(2), 62(3), 65(1), 65(4), 68(1), 68(2), 68(3), 71(3), 71(4), 85(1), and 165(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

5. In casu, the Non-Executive Board members, the respondent's Board, the respondent, the arbitrators and the courts have no authority to invoke the principle of retrospectivity without legal termination of the applicant's contract of employment.

The Non-Executive Board members, the respondent's Board, the respondent, the arbitrators and the courts are infringing the appellant's fundamental rights as enshrined in sections 11, 18(1) of the former Constitution of Zimbabwe and sections 3(1)(a), 3(1)(b), 3(1)(c), 3(1)(h), 44(2), 47, 56(1), 57(c), 57(e), 62(2), 62(3), 65(1), 65(4), 68(1), 68(2), 68(3), 71(1), 71(3), 71(4), 85(1), and 165(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

6. The applicant's backpay (salaries and benefits), insurance benefits, and pension benefits are vested rights which cannot be taken away without compensation.

The respondent's management, the Non-Executive Board members, the respondent's Board, the respondent, the arbitrators and the courts cannot take away the applicant's salary and benefits in terms of section 13(2) of the Labour Act [Chapter 28:01].

The respondent's management, the Non-Executive Board members, the respondent's Board, the respondent, the arbitrators, and the courts are infringing the appellant's fundamental rights as enshrined in section 16(1) of the former Constitution of Zimbabwe and sections 66(2), 62(3), 71(1), and 71(4) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

7. The Non-Executive Board members, the respondent's Board, the respondent, the arbitrators, and the courts have no authority to set the remuneration of the applicant in terms of section 20(1) First Schedule [section 21(1)(sic)] – POWERS OF AUTHORITY, para 12 of the Agricultural and Rural Development Authority Act [Chapter 18:01], section 161(1) of the former Constitution of Zimbabwe and section 71(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

8. The applicant's premature termination of employment, illegal termination of employment and/or invoking the principle of retrospectivity take away the applicant's vested right to back-pay (salaries and benefits) and infringe the appellant's fundamental rights as enshrined in section 16(1) of the former Constitution of Zimbabwe and sections 62(2), 62(3), 71(1) and 71(4) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

In the meantime, the relief sought from the Constitutional Court, following the grant of an order for direct access, is framed in the following manner:

“1. That, the applicant's rights to the protection of the law enshrined in section 56(1) of the Constitution of Zimbabwe; to access information enshrined in sections 62(2) and 62(3) of the Constitution of Zimbabwe; to labour rights enshrined in sections 65(1) and 65(4) of the Constitution of Zimbabwe; to administrative justice enshrined in sections 68(1) and 68(2) of the Constitution of Zimbabwe; to a fair hearing enshrined in sections 69(2) and 69(3) of the Constitution of Zimbabwe; and to right to property enshrined in sections 71(3) and 71(4) of the Constitution of Zimbabwe were infringed by the Arbitrator's Interim Award dated 14 July 2010, the Arbitrator's Award dated 28 October 2010, the Labour Court's in its Judgment No. LC/H/87/14, the Supreme Court in its Judgment No. SC58-15, the Arbitrator's Interim Arbitration Award of 26 July 2017, the Labour Court's Judgment No. LC/H/279/2018, the Labour Court's Judgment No. LC/H/23/2019 and the Labour Court's Judgment No. LC/H/23/2021 in the matter of Erickson Mvududu v Agricultural and Rural Development Authority in that the hearings a quo, and the courts a quo, failed to appreciate that they were disabled to render such decisions.

ACCORDINGLY IT IS ORDERED:

2. That, the Arbitrator's Interim Award dated 14 July 2010, the Arbitrator's Award dated 28 October 2010, the Labour Court in its Judgment No. LC/H/87/14, the Supreme Court in its Judgment No. SC58-15, the Arbitrator's Interim Arbitration Award of 26 July 2017, the Labour Court's Judgment No. LC/H/279/2018, the Labour Court's Judgment No. LC/H/232/2019 and the Labour Court's Judgment No. LC/H/23/2021C be and are hereby declared null and void and of no force or effect and are set aside.

3. That, the dismissal of the applicant from employment by the first respondent's Board and the first respondent, on 19 May 2009, was unlawful, null and void and accordingly, it is hereby set aside.

4. That, the first respondent be and is hereby ordered to pay the applicant his arrear salary, allowances, and benefits with effect from 1 March 2009.

5. That, the respondents (if they oppose this application) jointly and severally pay the costs of this application the one paying the other to be absolved.”

The Labour Court had to decide whether or not the application for referral on the questions, as framed in the draft, had merit.

The application for referral was determined on the merits by the Labour Court.

The reasoning by the court, in such an application, is an important factor in assessing whether or not the court exercised its mind properly in coming to the conclusion that the application was frivolous or vexatious. It is therefore necessary to set out the reasoning in extenso.

The learned judge of the Labour Court stated:

“The issues that the applicant is seeking to raise are not directly relevant, or do not arise from the proceedings before the court. No constitutional infringement has been alleged in relation to the proceedings of the application for leave to appeal. The applicant seeks to impugn all decisions that have been handed down and all awards that have ever been handed down in his case, and they are not few considering that his dismissal was in May 2009, and, to date, the matter is still in the courts.

It has been to the Supreme Court, the then apex court of the land, and back.

The challenges that are now being raised as constitutional issues were decided up to the Supreme Court level and cannot now be revisited, and, if they must, it cannot be this Court that can revisit a decision of the Supreme Court.

The Labour Court has no such jurisdiction.

The issues also raised as constitutional issues must also be such that the Labour Court has jurisdiction over them. The Labour Court has no powers of reviewing process that has been through the courts up to Supreme Court. This court can also not even review decisions of other Judges of the Labour Court which were handed down by the other Judges. The court cannot even review actions taken by management at the respondent workplace unless it is referred through the proper channels.

For example, one of the alleged constitutional breach alleged is 'The most serious infringement of the applicant's fundamental rights is the fact that the applicant was unlawfully dismissed without any misconduct charges being laid against him, let alone, without following appropriate procedure in termination of the applicant's contract of employment….,.'

That this was a breach of the applicant's contract was settled up to the Supreme Court level and he was awarded damages for the unfair loss of his employment.

We cannot keep on going back to the breaches which have already been settled by the courts.

There must be an end to litigation; once the Supreme Court settled the dispute, that is the end of the road, save for the quantification issues.

The applicant alleges that all the awards, all the Labour Court judgments, and the Supreme Court judgments were disabled.

If there was anything wrong with the Supreme Court judgment, it cannot be brought back to the arbitrators and the Labour Court.

The issues raised, the manner in which they are being raised, seem to lend credence to the fact that the appellant is just being frivolous and vexatious.

In deciding whether the matter being raised is frivolous, the court has been referred to the case of Martin v Attorney–General and Anor 1993 (1) ZLR 153 (S).

In that case, the court stated that:

'In the context of section 24(2), the word 'frivolous' connotes, in its ordinary and natural meaning, the raising of a question marked by lack of seriousness, one inconsistent with logic and good sense, and clearly so groundless and devoid of merit that a prudent person could not possibly expect to obtain relief from it.

The word 'vexatious' in contradistinction, is used in the sense of the question being put forward for the purpose of causing annoyance to the opposing party, in the full appreciation that it cannot succeed; it is not raised bona fide, and, a referral would be to permit the opponent to be vexed under a form of a legal process that was baseless.'

It is this Court's considered view, that, in raising preliminary points which seek to challenge a decision of the Supreme Court before the arbitrator, and, again, before the Labour Court and also in seeking to reopen the dispute on the merits of the fairness of the decision when the Supreme Court has already pronounced itself on that issue, the applicant's conduct is indeed marked by a lack of seriousness and the conduct is inconsistent with logic and good sense.

He surely cannot expect to succeed in getting the arbitrator, and this court, to review a decision by the Supreme Court.

The applicant cannot seriously expect the arbitrator and the Labour Court to re-open the dispute at this stage.

The applicant must be taken to appreciate that he cannot succeed. He is merely being vexatious. In the result, the application is held to be frivolous and vexatious.”

A perusal of the draft order attached to the application for referral to the Constitutional Court for determination on the merits reveals that it is the same relief as sought in the main application sought to be filed herein.

When regard is had to the judgment of the court a quo, it is evident that the learned judge considered whether the application for referral was justified. The learned judge was alive to the requirement that the court exercises its mind on the question of whether the request for referral was frivolous or vexatious.

The court sought reliance from the dicta in Martin v Attorney General and Anor 1993 (1) ZLR 153 (S) as is evident from the judgment of the court a quo above.

What is at issue for consideration herein is whether or not a person is precluded from applying to this Court for redress, under section 85 of the Constitution, where an application for referral is refused by a subordinate court.

The question posed herein was discussed and decided in Martin v Attorney General and Anor 1993 (1) ZLR 153 (S) wherein the court stated at p156D-F:

“The fallacy of the contention is self-evident. Suppose that a judicial officer, solely due to animosity towards an accused, in bad faith and without any warrant, were to rule that the question raised by him was frivolous or vexatious and so order his remand in custody pending trial. Could it then be said that the accused was only entitled to approach the Supreme Court for relief under section 24(3)?

I think not.

Such action by the judicial officer concerned would, as mentioned before, itself constitute an infringement of the accused's entitlement to protection of the law. Moreover, and most importantly, since at the conclusion of any remand proceedings there is no right of appeal, no remedy under section 24(3) would be available to that accused.”

Section 24(3) of the former Constitution, which was under consideration in Martin v Attorney-General and Anor 1993 (1) ZLR 153 (S) provided as follows:

“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 on 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 construing the section, the court went on to state, at p158F–159A:

“On the other hand, if a judicial officer, after applying conscientious and objective thought to the question raised in the proceedings before him, were to express the opinion that it was frivolous or vexatious, the requesting party would, in consequence, have no locus standi to apply to the Supreme Court for redress under section 24(1).

He would only be entitled, if an appeal lay from the determination of the proceedings, to raise the question in reliance upon the provisions of section 24(3).

For these reasons, I am satisfied that the present application was correctly brought under section 24(1) of the Constitution. The order made by the magistrate was, in the circumstances, beyond his jurisdiction. This court must now place itself in the position it would have been had the magistrate, as he ought to have done, referred to it the question raised before him."

However, in a subsequent matter, S v Mbire 1997 (1) ZLR 579, the Supreme Court spelt out, that, it was only in rare and special situations, such as were found to exist in Martin v Attorney-General and Anor 1993 (1) ZLR 153 (S) that an application under section 24(1) would be entertained against a refusal for referral under section 24(2).

The applicant seeks leave for access to the Constitutional Court in terms of section 167(5) of the Constitution.

When regard is had to the dicta in Martin v Attorney General and Anor 1993 (1) ZLR 153 (S) it is clear, that, once a finding is made that the application for referral is frivolous or vexatious, the requesting party is precluded from approaching the court under section 85 of the Constitution for the determination of the question.

The position is different where the requesting party alleges that those proceedings, on their own, violated his right.

That is not the contention in casu.

The applicant intends to obtain an omnibus order for the setting aside of all proceedings between himself and the respondent.

What is evident is that the Labour Court has made a determination of the questions sought to be raised by the applicant and found no merit in the alleged constitutional violations. The court made a decision that there must be finality to litigation and that there is no legal basis, on the papers filed by the applicant, to substantiate an allegation of the violation of his rights. The court stated, that, there is no legal recourse open to the applicant to have all the processes surrounding his dispute with the third respondent to be reopened.

This is the relief he seeks before the Constitutional Court.

A pronouncement having been made on the issue, it is now res judicata. The judgment of the Labour Court is extant and remains so until and unless set aside.

It has not been set aside and binds all parties thereto....,.

The Labour Court determined that the application was frivolous and vexatious. That judgment precludes him from making an application for direct access....,.

Unless and until the judgment is set aside, the parties hereto must adhere to it.

CC13-20 : THABANI MPOFU vs ZIMBABWE ENERGY REGULATORY AUTHORITY and MINISTER OF ENERGY AND POWER DEVELOPMENT and GREEN FUELS (PVT) LTD
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWEJCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA JCC

This is a court application made in terms of section 85(1) of the Constitution of Zimbabwe (No.20) Act 2013 (the Constitution') which section provides for direct access to this Court in the pursuance of the protection of fundamental rights and freedoms as enshrined in Chapter 4 of the Constitution, and also, alternatively, direct access ostensibly motivated pursuant to section 167(5) of the Constitution.

The applicant seeks an order declaring the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I.17 of 2013 (hereinafter referred to as “the Petroleum Regulations”') and the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Amendment Regulations (No.1) S.I. 147A, 2013 (hereinafter referred to as 'the Amendment Regulations') to be ultra vires the Constitution and that they be set aside....,.

The issue that remains before this Court is whether the allegation, that, the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I.17 of 2013 are ultra vires the parent Act entitles the applicant to approach this Court, directly, in terms of section 134(c) of the Constitution....,.

On the second inquiry, this Court…, is simply being asked to determine whether the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations SI 17 of 2013 are in breach of any human right as defined in Chapter 4 of the Constitution….,.

With the latter inquiry, the applicant has the right to approach the Court in terms of section 85 of the Constitution of Zimbabwe….,.

With the former, it can be argued that the applicant's right to approach this Court is based on the common law. If that is the case, then, the old common law principles which require an individual to show some legitimate Constitutional interest must be applied.

The latter inquiry has already been exhaustively dealt with in the discussion on locus standi in the context of section 85(1) of the Constitution.

With regard to the former, the so-called "common law based” approach, it has been argued in this section, that, the applicant's position is akin to a request for direct access and that he should show it is in the interest of justice to grant access by, firstly, demonstrating at least a prima facie case, which he has failed to do as shown above, and, secondly, exhaustion of other remedies.

Now, as far as exhausting other remedies is concerned, section 167(1)(b) of the Constitution, which the applicant urges this Court to rely on, provides that the Constitutional Court "decides only constitutional matters and issues connected with decisions on constitutional matters, in particular, references and applications under section 131(8)(b) and paragraph 9(2) of the Fifth Schedule."…,.

The applicant does not purport to bring the application in terms of section 131(8)(b) of the Constitution or related provision, and, indeed, would not be able to do so as this is a legislative function or prerogative.

Paragraph 9(2) of the Fifth Schedule of the Constitution bears quoting in full:

“(2) If, after considering a report of the Parliamentary Legal Committee, that a provision of a statutory instrument contravenes this Constitution, the Senate or the National Assembly resolves that the provision does contravene this Constitution, the Clerk of Parliament must report the resolution to the authority which enacted the instrument, and that authority must, within 21 days after being so notified, either —

(a) Apply to the Constitutional Court for a declaration that the statutory instrument is in accordance with this Constitution; or

(b) Repeal the statutory instrument.”

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Law Portal
Zimbabwe

Cause of Action and Draft Orders re: Approach iro Constitutional Proceedings

Appealed
CC05-24 : PENELOPE DOUGLAS STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD
Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

CC09-23 : TENDAI MASHAMANDA vs BARIADE INVESTMENTS (PVT) LTD and PUWAYI CHIUTSI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT and ELLIOT ROGERS and ATTORNEY GENERAL ZIMBABWE
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

CC12-23 : DIVINE HOVE vs PARLIAMENT OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC10-21 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY (ARDA) and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

CC13-20 : THABANI MPOFU vs ZIMBABWE ENERGY REGULATORY AUTHORITY and MINISTER OF ENERGY AND POWER DEVELOPMENT and GREEN FUELS (PVT) LTD
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWEJCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA JCC

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Law Portal Zimbabwe

Cause of Action and Draft Orders re: Approach iro Constitutional Proceedings

Appealed CC05-24 : PENELOPE DOUGLAS STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

CC09-23 : TENDAI MASHAMANDA vs BARIADE INVESTMENTS (PVT) LTD and PUWAYI CHIUTSI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT and ELLIOT ROGERS and ATTORNEY GENERAL ZIMBABWE Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

CC12-23 : DIVINE HOVE vs PARLIAMENT OF ZIMBABWE Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC10-21 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY (ARDA) and ATTORNEY GENERAL OF ZIMBABWE Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

CC13-20 : THABANI MPOFU vs ZIMBABWE ENERGY REGULATORY AUTHORITY and MINISTER OF ENERGY AND POWER DEVELOPMENT and GREEN FUELS (PVT) LTD Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWEJCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA JCC

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Law Portal
Zimbabwe

Appealed
CC05-24 : PENELOPE DOUGLAS STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD
Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

CC09-23 : TENDAI MASHAMANDA vs BARIADE INVESTMENTS (PVT) LTD and PUWAYI CHIUTSI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT and ELLIOT ROGERS and ATTORNEY GENERAL ZIMBABWE
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

CC12-23 : DIVINE HOVE vs PARLIAMENT OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC10-21 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY (ARDA) and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

CC13-20 : THABANI MPOFU vs ZIMBABWE ENERGY REGULATORY AUTHORITY and MINISTER OF ENERGY AND POWER DEVELOPMENT and GREEN FUELS (PVT) LTD
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWEJCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA JCC