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…,.
I digress momentarily to discuss what constitutes an issue connected with a decision on a constitutional matter.
Section 167(1)(b) of the Constitution provides that:
“(1) The Constitutional Court —
(a)…,.
(b) 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;”
We have not, as a jurisdiction, had occasion to clearly define what constitutes “issues connected with decisions on constitutional matters” as provided in section 167(1)(b) of the Constitution.
In this regard, it may be necessary to have regard to a number of decisions by the South African Constitutional Court.
Given that this Court only decides constitutional matters, an issue connected with a decision on a constitutional matter must be preceded by a constitutional matter and the determination of the issue must essentially be inseparable from the decision on the constitutional matter.
In Rushesha & Others v Dera & Others CC24–17…, this court expressed the view that the word “connected” in section 167(1)(b) of the Constitution means that the issue must bear a relationship to the decision on a constitutional matter.
In the leading South African case of Alexkor Ltd and Another v Ritchersveld Community and Another 2004 (5) SA 460 (CC)…, the Constitutional Court remarked that “when any factum probandum of a disputed issue is a constitutional matter, then, any factum probans bearing logically on the existence or otherwise of such factum probandum, is itself an issue 'connected with [a] decision on [a] constitutional matter.'”
In S v Basson 2005 (1) SA 171 (CC)…, the court further remarked that “legal and factual matters that need to be decided in order to determine a constitutional matter are issues connected with a decision on a constitutional matter.”
The enquiry that this Court sets out to make, of whether or not section 70 of the Police Act had been engaged and pleaded a quo so as to give rise to a constitutional matter, is clearly an issue connected with a decision on a constitutional matter.
The issue is connected with the decision that this Court is required to make on the constitutional question as to whether or not the present referral is valid.
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…,.
I proceed to consider the effect, if any, of the demise of the trial Judge on the proceedings before him, including the issues he had referred to this Court.
This too is an issue connected with a decision on a constitutional matter.
THE EFFECT ON THE PROCEEDINGS A QUO OF THE DEATH OF THE PRESIDING JUDGE
Even if prescription had been properly pleaded by the fourth and fifth respondents, a further issue relating to the validity of these proceedings would still have arisen. This question arises from the common cause fact that the presiding Judge a quo, MAKOMO J, died pending the determination of this referral.
It is a hallowed principle of the law, that, the death of a judicial officer has a juridical effect on matters that were partly heard by him or her. In this regard, HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts and Supreme Court of Appeal of South Africa, 5th ed, (2009), state..,.:
“Where a judge is removed from office, whether on account of misbehaviour or infirmity of body or mind, or where a judge is suspended pending a decision on removal from office, he may not thereafter complete matters outstanding at the date of removal or suspension. But, where a judge has resigned from office, such resignation is not a bar to concluding unfinished matters. If the judge does not conclude such matters he becomes functus officio and the same principles that operate when a judge dies or becomes incapacitated will apply. The matters must be tried de novo.”
The point was made more incisively by the High Court in S v Tsangaizi 1997 (2) ZLR 247 (H). At pp248–249 GILLESPIE J remarked as follows:
“In order to determine whether this trial can be commenced afresh, it is therefore necessary to examine the common law relating to the incapacity or unavailability of a judicial officer….,.
The first proposition, that the death or incapacity of a magistrate brings about the nullity of the incomplete proceedings, is entirely correct. The point is exemplified in a number of cases which I shall shortly examine below. The principle is that if during the course of proceedings a judicial officer ceases to have jurisdiction, then, the proceedings up to that point are abortive.”…,.
See also S v Nqobile Sibanda HH59-05 in which similar remarks were echoed by the same court.
A number of other decided cases put it beyond doubt, that, any proceedings commenced before a deceased judicial officer are rendered abortive by his or her death. The circumstance presented by the case of Charmfit of Hollywood Inc v Registrar of Companies & Anor 1964 (2) SA 765 (T) is helpful.
In that case, the Court had to determine whether it could award costs of a previous hearing that was conducted before a Judge who had died before he could give judgment. Departing from the conclusion that had been reached in an earlier case, that a second Judge taking over a matter after the first Judge had become incapacitated could not issue an order of costs of the abortive hearing, the Court stated, at 770B-D, that:
“With great respect, I must differ from that view. The previous hearing merely represents an uncompleted stage of the proceedings with which this Court was and is seized until it gives its final judgment therein. It therefore retains full jurisdiction and discretion in regard to the costs of that hearing as with all other stages and incidents in the proceedings, and can make any special order appropriate to the circumstances in regard thereto in the course of finally deciding and disposing of all issues between the parties still outstanding at this stage of the proceedings (cf. Van der Merwe's Engineering Works v Raath 1948 (4) SA 758 (T); Union Government v Modderfontein 'B' Gold Mines Ltd 1925 T.P.D. 61 at p68).
If no such special order is made, probably such costs would simply follow and be taxed as the costs awarded in the cause, because they would be costs necessarily incurred in the cause of those proceedings….,.
In the result, the application is dismissed with costs, such costs to include the costs of the previous hearing before the late Mr Justice KUPER.”…,.
Similarly, in the case of Protea Assurance Co. Ltd v Gamlase & Others 1971 (1) SA…, the Court held that:
“In the Philipp case, the Court was concerned with a situation where an appeal had been argued before a Judge who had resigned on account of ill-health before giving judgment. In the course of his judgment, BREBNER AJ said:
'It seems to me, that, as in the case of the death of a Judge before giving judgment, the case must be tried de novo.'
This passage, in my opinion, is undoubtedly correct and it is indeed clear to me that precisely the same reasoning must apply in the present circumstances. To paraphrase the words used by TROLLIP J in the Charmfit of Hollywood case, this Court has retained full jurisdiction in regard to all stages and incidents in the proceedings and can make any special order appropriate to the circumstances existing. I have come to the conclusion, therefore, that, the proper course to adopt is to regard the application for leave to sue in forma pauperis as a pending and uncompleted application in this Division and to direct that it be dealt with as if the hearing on 25th May 1965 had not taken place.”
The position is therefore settled, that, the death of a Judge, before giving a final judgment, renders any proceedings commenced before him abortive. Such proceedings must be tried de novo. A subsequent Judge cannot competently take the matter up from where the deceased Judge would have left it.
It may be worth mentioning at this stage, that, there are certain statutes in this jurisdiction which have modified the common law in this regard, especially where a number of Judges hear a matter and one of them becomes incapacitated or dies before the delivery of judgment.
In most cases, the remaining number of Judges are permitted to finalise the matter or a new Judge is assigned to proceed from where the former Judge left: see, for example, section 4(3) of the Supreme Court Act [Chapter 7:13]; section 4(3) of the High Court [Chapter 7:06]; and section 5(2) of the Constitutional Court Act [Chapter 7:22].
During oral arguments, both counsel conceded that the action by the applicant was already before MAKOMO J when the putative referral was made. Following the death of MAKOMO J, the hearing before him, and any procedural stages taken before him, were rendered abortive.
It follows from this, that, the pleadings filed by the parties in the matter were not affected by the death of the judge and that such pleadings will form a basis for a fresh hearing before another Judge of the High Court.
Counsel for the applicant sought to contend, that, the judgment by MAKOMO J, on the request to refer a constitutional matter to this Court, stood on its own and “did not die with Judge.” He added, that, the late Judge, by the time of his death, was functus officio on the request to refer a constitutional matter to this Court.
Put differently, counsel for the applicant contended, that, the High Court had already discharged its jurisdiction on the request to refer the constitutional matter to this Court and, thus, the death of the Judge who granted the request cannot alter the fact that the High Court has already discharged its jurisdiction on that question.
I am unable to find any merit in the above submission.
The mis-apprehension in counsel's argument stems from his understanding, that, the stage of the proceedings a quo in which the referral of the constitutional matter to this Court was made is severable from the pending trial action.
Indubitably, the hearing conducted on the request to refer a constitutional matter to this Court and the judgment which was passed subsequent to that hearing are part and parcel of the part-heard trial action that was before MAKOMO J.
A request to refer a constitutional matter to this Court must arise during the non-constitutional proceedings of a subordinate court. The determination of the constitutional matter must be necessary for the resolution or completion of the pending non-constitutional matter before the court.
What is of importance is that a determination as to whether a request to refer a constitutional matter would not be frivolous and vexatious lies with the presiding judicial officer in terms of section 175(4) of the Constitution.
In other words, a presiding judicial officer must be satisfied that the resolution of the constitutional matter raised by a party is necessary to enable him or her to dispose of the non-constitutional matter before the court. It cannot be passed, imputed, or foisted on a subsequent judicial officer.
Regard being had to the rationale underlying the principle that, upon the death of a Judge, any case commenced before him must be tried de novo, the submissions by counsel for the applicant in this regard cannot therefore succeed.
It bears restating, that, only the Judge who would have commenced the proceedings and received evidence on the request to refer a constitutional matter to this Court would be in a position to finalize that matter after the determination of the referral by this Court.
