Constitutional appeal https://old.zimlii.org/taxonomy/term/9796/all en Makanda v Magistrate Sande N.O And 3 Others (CCZ 03-21, Constitutional Application No. CCZ 15/20) [2021] ZWCC 3 (17 May 2021); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2021/3 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. CCZ 03/21</p> <p>Constitutional Application No. CCZ 15/20</p> <p> </p> <p><strong>REPORTABLE</strong><strong>        (3)</strong></p> <p> </p> <p> </p> <p><strong>PRAYMORE     MAKANDA</strong></p> <p><strong>V</strong></p> <ol> <li><strong>    MAGISTRATE     SANDE     N.O     (2)     MAGISTRATE     KADYE     N.O     (3)     MAGISTRATE     NDIRAYA     N.O     (4)     THE     STATE</strong></li> </ol> <p> </p> <p> </p> <p><strong>CONSTITUTIONAL COURT OF ZIMBABWE</strong></p> <p><strong>GOWORA AJCC, HLATSHWAYO AJCC &amp; PATEL AJCC</strong></p> <p><strong>HARARE: 22 MARCH 2021 &amp; 17 MAY 2021</strong></p> <p> </p> <p> </p> <p> </p> <p>Applicant in person</p> <p><em>F. Nyahunzvi,</em> for the respondents</p> <p> </p> <p><strong>PATEL AJCC</strong>:             This is an application for direct access to the Constitutional Court made in terms of s 167(5)(a) of the Constitution of Zimbabwe. The allegation is that the conduct of the respondents violated the applicant`s fundamental rights as enshrined in ss 69(1) and 70(1)(d),(e) and (f) of the Constitution.</p> <p> </p> <p>The background</p> <p>The brief facts of the matter are as follows. In 2017 the applicant was arraigned before the magistrates court at Harare facing charges of fraud as defined in s 136 of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>]. Three separate trials were held before the first, second and third respondents and he was convicted and sentenced to three separate terms of imprisonment.</p> <p>It is the applicant`s allegation that during the conduct of the trial proceedings the first and second respondents violated his right to legal representation because they did not advise him of that right at the commencement of the trial. This is alleged to be a violation of s 70 (1)(d), (e) and (f) of the Constitution.  In the same respect, it is also alleged that the first and second respondents “failed to take heed to the laws governing the commencement of criminal trials” and therefore violated s 163A(1) and (2) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] (the CP&amp;E Act). It is further alleged that such conduct infringed the applicant`s right to a fair trial as entrenched in s 69(1) of the Constitution.</p> <p> </p> <p>As regards the third respondent, it is averred that the magistrate did advise the applicant of his right to legal representation in terms of s 191 of the CP&amp;E Act, but then failed to make an enquiry as to whether or not the applicant had understood those provisions. This is said to have led to unfair proceedings in violation of ss 69(1) and 70(1)(d),(e) and (f) of the Constitution.</p> <p> </p> <p>Allegations are also made against the fourth respondent in that it failed to assist the applicant in protecting his fundamental rights as aforementioned. Consequent to these alleged violations, the applicant has approached this Court for relief.</p> <p> </p> <p>The application is opposed by the fourth respondent. It contends that the applicant has not demonstrated that it is in the interests of justice that he be granted direct access to the court. It is also argued that the mere reference to constitutional provisions does not mean that a constitutional matter has been raised. It is important to note that the fourth respondent concedes that the proceedings before the first, second and third respondents were irregular, but nevertheless avers that competent relief could have been granted by the High Court or the Supreme Court thus obviating the need to approach the court directly. In fact, it is alleged that the applicant has since approached the High Court for relief under Case No. HC 7066/20. It is prayed that the application be dismissed as it is without merit.</p> <p> </p> <p>Requirements for direct access</p> <p>An application for direct access is regulated by the Constitutional Court Rules and an applicant must satisfy all the requirements contained therein. Compliance with the Rules is not a mere formality. As was stated in <em>Liberal Democrats &amp; Ors </em>v<em> The President of the Republic of Zimbabwe E.D. Mnangagwa N.O. &amp; Ors</em> CCZ 7/18, at p. 10 of the judgment:</p> <p> “Direct access to the Constitutional Court is an extraordinary procedure granted in deserving cases that meet the requirements prescribed by the relevant rules of the Court.”</p> <p> </p> <p>Rule 21 (3) of the Rules contains the requirements that ought to be satisfied in an application of this nature. It states the following:</p> <p>“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out—</p> <p>(<em>a</em>) the grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and</p> <p>(<em>b</em>) the nature of the relief sought and the grounds upon which such relief is based; and</p> <p>(<em>c</em>) whether the matter can be dealt with by the court without the hearing of oral evidence or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”</p> <p> </p> <p>Rule 21(8) itemises some of the factors to be taken into account in determining whether it is in the interests of justice for a matter to be brought directly to this Court. These include the prospects of success if direct access is granted, the availability of an alternative remedy and whether there are disputes of fact in the matter.</p> <p>The importance of the requirement that an applicant should show that it is in the interests of justice that the application be granted is explained by Currie and de Waal: <em>The Bill of Rights Handbook </em>(6th ed. 2013) at p. 128. The learned authors state as follows:</p> <p>“Direct access is an extraordinary procedure that has been granted by the Constitutional Court in only a handful of cases. … The Constitutional Court is the highest court on all constitutional matters. If constitutional matters could be brought directly to it as a matter of course, the Constitutional Court could be called upon to deal with disputed facts on which evidence might be necessary, to decide constitutional issues which are not decisive of the litigation and which might prove to be of purely academic interest, and to hear cases without the benefit of the views of other courts having constitutional jurisdiction. Moreover, … it is not ordinarily in the interests of justice for a court to sit as a court of first and last instance, in which matters are decided without there being any possibility of appealing against the decision given.”</p> <p> </p> <p>Jurisdiction of the Court</p> <p>It is settled law that the jurisdiction of the court is triggered only where a constitutional issue arises or where an issue connected with a decision on a constitutional matter arises<em>.</em></p> <p> </p> <p>Section 332 of the Constitution defines a constitutional matter as a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution. In <em>Moyo </em>v <em>Chacha &amp; Ors</em> 2017 (2) ZLR 142 (CC), the court defined a constitutional matter in the following words, at 150D:</p> <p> </p> <p>“The import of the definition of a ‘constitutional matter’ is that the Constitutional Court would be generally concerned with the determination of matters raising questions of law, the resolution of which require the interpretation, protection or enforcement of the Constitution.</p> <p>The Constitutional Court has no competence to hear and determine issues that do not involve the interpretation or enforcement of the Constitution or are not connected with a decision on issues involving the interpretation, protection or enforcement of the Constitution.”</p> <p> </p> <p>Also germane in the present context are the twin doctrines of constitutional avoidance and subsidiarity which ordinarily operate to militate against the assumption of jurisdiction by this Court, even where a constitutional question or matter might otherwise arise for determination. This position was articulated succinctly in <em>Zinyemba</em> v <em>Minister of Lands and Rural Resettlement &amp; Anor</em> 2016 (1) ZLR (23) CC, at 274F:</p> <p>“Two principles discourage reliance on the constitutional rights to administrative justice. The first is the principle of avoidance which dictates that remedies should be found in legislation before resorting to constitutional remedies. The second principle is one of subsidiarity which holds that norms of greater specificity should be relied upon before resorting to norms of greater abstraction.” </p> <p> </p> <p>Whether the matter is properly before the court</p> <p><em>In casu</em>, the circumstances of the case demand that an analysis of whether the matter is properly before the Court ought to be made before any enquiry into the merits.</p> <p> </p> <p>In his founding affidavit, the applicant purports to bring the present application before the court in terms of s 167(5)(a) of the Constitution. This is clearly irregular as such an application cannot be brought before the court in terms of that provision. Section 167(5)a) of the Constitution provides as follows:</p> <p>“(5) Rules of the Constitutional Court must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court—</p> <p>(<em>a</em>) to bring a constitutional matter directly to the Constitutional Court;”.</p> <p> </p> <p>The above provision clearly makes reference to the Rules of the Constitutional Court in terms of which a litigant must approach the court. Section 167(5)(a) cannot be read as a standalone provision independent of other constitutional provisions and the Rules that it mentions. As pointed out by GWAUNZA JCC in <em>Prosecutor General, Zimbabwe </em>v<em> Telecel Zimbabwe (Pvt) Ltd </em>2015 (2) ZLR 422 (CC), at 425H:</p> <p>“…s 167 does not elaborate as to who, on what conditions or how, a party may approach the court for it to exercise    the jurisdiction conferred upon it by that provision.”</p> <p> </p> <p>The Court went further to explain the true status of the provision, at 426A:</p> <p> </p> <p>“In order to give full effect to s 167(1) in relation to any constitutional matter sought to be brought before the court, the provision must be read in conjunction with the various provisions that do confer a right to approach the Constitutional Court directly or indirectly through another process.”</p> <p> </p> <p>Whilst the above remarks were made in relation to s 167(1) of the Constitution, they apply with equal force to the circumstances <em>in casu</em>. Section 167(5)(a) of the Constitution, in terms of which the applicant seeks to approach this Court, must be read together with other provisions of the Constitution and the Rules which were enacted to give effect to that provision. In that regard, s 85(1) of the Constitution and r 21 of the Rules are pertinent. Section 85(1) of the Constitution provides as follows:</p> <p>“85 (1)   any of the following persons, namely-</p> <p>(a)        any person acting in their own interests;</p> <p>(b)        any person acting on behalf of another person who cannot act for themselves;</p> <p>(c)        any person acting as a member, or in the interests, of a group or class of persons;</p> <p>(d)       any person acting in the public interest;</p> <p>(e)        any association acting in the interests of its members;          </p> <p>is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”</p> <p> </p> <p>Having regard to the above provision, it is apparent that the applicant ought to have approached the Court in terms of s 85(1) of the Constitution, claiming the vindication of his fundamental rights. Section 167(5)(a) <em>in se</em> does not confer upon anyone the right to approach the Constitutional Court directly, even where there is a constitutional matter for determination.</p> <p> </p> <p>It is also necessary to point out that the applicant has not attached a draft of the substantive application which he intends to place before the Court should direct access be granted. This is a requirement in terms of r 21(4) of the Rules which provides as follows:</p> <p>“(4) The applicant shall attach to the application a draft of the substantive application he or she seeks to file with the court.”</p> <p> </p> <p>It is trite that, generally speaking, the use of the word “shall” is indicative of the legislature`s intention to make the provision under scrutiny peremptory or imperative rather than merely directory or permissive. See <em>Shumba &amp; Anor </em>v<em> The Zimbabwe Electoral Commission &amp; Anor</em> 2008 (2) ZLR 65 (S), at 80E-81C. The consequences of a failure to comply with a mandatory provision are explained by Francis Bennion: <em>Statutory Interpretation</em>, at p. 22, as follows:</p> <p>“Where the relevant duty is mandatory, failure to comply     with it invalidates the thing done. Where it is merely directory the thing done will be unaffected (though there may be some sanction for disobedience imposed on the person bound).”</p> <p> </p> <p>The applicant`s failure to attach a draft of the substantive application that he intends to file with the court should direct access be granted is a clear violation of r 21(4) of the Rules. In the absence of such a draft application, the court is severely hamstrung as regards the assessment of the merits of this application. A determination of whether or not it is in the interests of justice to grant direct access is made impossible without the court having sight of that draft application.</p> <p> </p> <p>Furthermore and finally, the applicant`s founding affidavit, in contravention of the peremptory provisions of r 21(3)(c) of the Rules, does not indicate whether the matter can be dealt with by the court without the hearing of oral evidence or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.</p> <p> </p> <p>Irregularities before the Magistrates Court</p> <p>There is a further disconcerting aspect of this matter that we think it necessary to comment upon before it is disposed of. This relates to the mandatory provisions of ss 163A and 191 of the CP&amp;E Act which enjoin the courts in criminal cases to advise accused persons of their right to legal representation at the commencement of criminal trials.</p> <p> </p> <p>The nub of the applicant’s case is that the first and second respondents violated this crucial procedural requirement and thereby denied him the right to proper legal representation. As for the third respondent, it is averred that he did advise the applicant of this right but then failed to make the further enquiry as to whether or not the applicant had understood the import of the governing provisions.</p> <p> </p> <p>The fourth respondent quite correctly concedes that in the trials before the first and second respondents there was no compliance with s 163A of the CP&amp;E Act. The State also concedes that the third respondent failed to record the exchange with the applicant pertaining to his right to legal representation and his comprehension or otherwise thereof.</p> <p> </p> <p>It is openly acknowledged by counsel for the fourth respondent that these omissions on the part of the first, second and third respondents constituted gross irregularities. Nevertheless, the State appears to have displayed a dogged reluctance to take heed of these irregularities or the applicant’s justifiable grievances in that regard.</p> <p> </p> <p>Regrettably, unlike the High Court and the Supreme Court, this Court is not presently endowed with any statutory powers of review that might be invoked and exercised <em>mero motu</em> to address or redress these patent irregularities. Nevertheless, we think it necessary in the interests of justice to bring them to the attention of the Judge President to enable him to refer the matter to a judge of the High Court for review. The Registrar of this Court is accordingly directed to submit a copy of this judgment to the Judge President for appropriate action to be taken.</p> <p>    </p> <p>Disposition</p> <p>Having considered the totality of the aforementioned circumstances <em>apropos</em> the present application itself, the inescapable conclusion is that it is fraught with fundamental irregularities and is therefore not properly before the court. The gravity of the irregularities marring the application precludes and obviates the need to assess and determine the merits thereof.</p> <p> </p> <p>It is accordingly ordered that the application, being improperly before the court, be and is hereby struck off the roll with no order as to costs.</p> <p> </p> <p><strong>GOWORA AJCC          </strong>            <strong>:</strong>                       I agree</p> <p> </p> <p><strong>HLATSHWAYO AJCC           :</strong>                       I agree</p> <p> </p> <p><em>National Prosecuting Authority</em>, respondents’ legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2021/3/2021-zwcc-3.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=34301">2021-zwcc-3.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2021/3/2021-zwcc-3.pdf" type="application/pdf; length=434146">2021-zwcc-3.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/constitutional-practice">CONSTITUTIONAL PRACTICE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/constitutional-appeal">Constitutional appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/courts-constitutional-practice">Courts (Constitutional practice)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/court">COURT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/jurisdiction-court">Jurisdiction (COURT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/legal-representation">Legal representation</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2018/7">Liberal Democrats &amp; 4 Others v President of the Republic of Zimbabwe E.D. Mnangagwa N.O &amp; 4 Others (CCZ 7/18, Constitutional Application No. CCZ10/18) [2018] ZWCC 7 (16 July 2018);</a></div><div class="field-item odd"><a href="/zw/judgment/constitutional-court-zimbabwe/2016/15-1">Moyo v Seargent Chacha &amp; 3 Others (CCZ 15/17, Constitutional Court Application No. CCZ 74/16) [2017] ZWCC 15 (04 November 2016);</a></div><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2016/3">Zinyemba v Minister, Lands &amp; Rural Settlement &amp; Another (CCZ 3/2016 Const. Application No. CCZ 123/13) [2016] ZWCC 03 (24 June 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/constitutional-court-zimbabwe/2015/10">Prosecutor General, Zimbabwe v Telecel Zimbabwe (Pvt) Ltd. (Const. Application No. 8/2014) [2015] ZWCC 10 (07 October 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item even"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Mon, 31 May 2021 09:08:43 +0000 Sandra 10007 at https://old.zimlii.org S v Mukondo (CCZ 8-20, Constitutional Application No. CCZ 2/19) [2020] ZWCC 8 (02 July 2020); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2020/8 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2020/8/2020-zwcc-8.pdf" type="application/pdf; length=344390">2020-zwcc-8.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/constitutional-practice">CONSTITUTIONAL PRACTICE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/constitutional-appeal">Constitutional appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/courts-constitutional-practice">Courts (Constitutional practice)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Thu, 08 Oct 2020 08:44:22 +0000 Sandra 9862 at https://old.zimlii.org Makumire v Minister, Public Service, Labour and Social Welfare & Another (CCZ 01/20, Const. Application No. CCZ 21/19) [2020] ZWCC 01 (03 July 2019); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2019/1-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. CCZ 01/20</p> <p>Const. Application No. CCZ 21/19</p> <p> </p> <p><strong>REPORTABLE (1)</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>WILLMORE MAKUMIRE</strong></p> <p><strong>v</strong></p> <ol> <li><strong>MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE</strong></li> <li><strong>ATTORNEY-GENERAL OF ZIMBABWE</strong></li> </ol> <p> </p> <p><strong>CONSTITUTIONAL COURT OF ZIMBABWE</strong></p> <p><strong>HARARE, JULY 3, 2019</strong></p> <p> </p> <p>The applicant in person</p> <p><em>Ms O Zvedi</em>, for the respondents</p> <p> </p> <p>            <strong>MALABA CJ:  </strong>After hearing submissions by counsel in the application, the Court made the following order by consent:</p> <p>“<strong>IT IS ORDERED BY CONSENT THAT</strong>:</p> <p>1.         The order of the court <em>a quo</em> given in terms of section 175(1) of the Constitution declaring section 93(5a) of the Labour Act [<em>Chapter 28:01</em>] to be in conflict with sections 56(1), 68(1) and 69(3) of the Constitution is not confirmed in terms of section 167(3) of the Constitution.</p> <ol> <li> </li> </ol> <p> </p> <p><strong>INTRODUCTION</strong></p> <p>Notwithstanding the fact that the matter was disposed of on the basis of an order by consent, a written judgment was necessary to clarify the law on the issue behind the interpretation of s 93(5a) of the Labour Act [<em>Chapter 28:01</em>] (“the Act”).</p> <p>The constitutional matter that was brought before the Constitutional Court (“the Court”) was whether s 93(5a) of the Act is in conflict with ss 56(1), 68(1) and 69(3) of the Constitution of Zimbabwe Amendment (No. 20) Act, 2013 (“the Constitution”). The matter came to the Court by way of the procedure laid down in s 175(1) of the Constitution for confirmation of orders concerning the constitutional invalidity of any law or any conduct of the President or Parliament made by another court.</p> <p>The High Court (“the court <em>a quo</em>”) made an order declaring s 93(5a) of the Act to be in conflict with ss 56(1), 68(1) and 69(3) of the Constitution and therefore invalid. Section 56(1) of the Constitution entrenches the right of every person to equality and to equal protection and benefit of the law. Section 68(1) of the Constitution protects the right of every person to administrative justice. Section 69(3) of the Constitution safeguards the fundamental right of every person to access the courts, or to some other tribunal or forum established by law for the resolution of any dispute.</p> <p>In terms of s 175(1) of the Constitution, any declaration of invalidity of any law or any conduct of the President or Parliament made by a competent court has no force until it has been confirmed by the Court. This section is complemented by s 167(3) of the Constitution, which provides that the Court makes the final decision on whether an Act of Parliament is constitutional and must confirm an order of invalidity made by another court. The sections serve distinct yet harmonious purposes, with the emphasis being placed on the express oversight of the Court over orders of constitutional invalidity of legislation made by other courts.</p> <p>The order of constitutional invalidity of s 93(5a) of the Act made by the court <em>a quo</em> had to be reviewed by the Court. The Constitution entrusts the Court with the duty of supervising the exercise by other courts of the power to declare laws inconsistent with it.</p> <p>The Court is also not bound by the order of constitutional invalidity made by the court <em>a quo</em>. In <em>S</em> v <em>Chokuramba</em> CCZ 10/19, the Court held at p 6 of the cyclostyled judgment as follows:</p> <p>”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.</p> <p>Thorough investigation is required, even where the proceedings are not opposed or even if there is an outright concession that the law or the conduct of the President or Parliament which is under attack is invalid. The reason for this strict requirement is that invalidity of the law or the conduct of the President or Parliament is a legal consequence of a finding of inconsistency between the law or the conduct in question and the Constitution. Inconsistency is a matter of fact, on the finding of which the court <em>a quo</em> and the Court may differ.” (the underlining is for emphasis)</p> <p> </p> <p>The Court still retains the power to decline an order of confirmation of constitutional invalidity, particularly where it is convinced that the order will have no practical effect or where the party challenging it has failed to show that he or she or it is injured by the operation of the impugned law.</p> <p><strong>THE BACKGROUND FACTS AND THE PROVISIONS OF THE LEGISLATION, THE CONSTITUTIONALITY OF WHICH IS IMPUGNED</strong></p> <p> </p> <p>The order of constitutional invalidity of s 93(5a) of the Act was made by the High Court in the following circumstances.</p> <p>On 10 February 2015 the applicant was suspended from work in terms of the Labour (National Employment Code of Conduct) Regulations, 2006 (S.I. 15 of 2006) (“the Code of Conduct”), on allegations of theft by conversion of US$100 meant to be paid to his employer.  A disciplinary hearing was conducted in terms of s 6(4) of the Code of Conduct. The applicant was found guilty of the acts of misconduct with which he was charged. He was dismissed from employment with effect from the date of suspension. He was advised that he had a right in terms of s 8 of the Code of Conduct to appeal against the decision to dismiss him.</p> <p>On 12 March 2015 the applicant referred the matter to a labour officer in terms of s 8(6) of the Code of Conduct. The section provides a remedy to a person aggrieved by a decision or manner in which an appeal is handled by an employer or the appeals officer or the Appeals Committee, as the case may be, to refer the case to a labour officer. Section 8(7) of the Code of Conduct provides that the labour officer to whom a matter is referred in terms of subs (6) of s 8 shall process the case as provided for under s 93(1) of the Act, which section deals with the conciliation of disputes.</p> <p>The labour officer did not dispose of the matter within the 30-day period prescribed under s 93(3) of the Act, leading to the applicant approaching the Labour Court in terms of s 93(7) of the Act. On 24 September 2015 the Labour Court made an order referring the matter back to the labour officer and directing him to appoint an arbitrator. Compulsory arbitration was no longer available as a remedy for the resolution of disputes of right or unfair labour practices which are disputes of right, following the enactment of the Labour Amendment Act No. 5 of 2015.</p> <p>The matter was referred back to the Labour Court for directions on how to proceed in light of the amendment to the provisions of s 93 of the Act. On 14 March 2016 the Labour Court directed that the matter be heard by the labour officer in terms of s 93(5)(c) of the Act. Section 93(5)(c) of the Act empowers a labour officer, who has issued a certificate of no settlement following a conciliation process relating to a dispute of right or unfair labour practice which is a dispute of right, to make a ruling relating to the matter specified thereunder.</p> <p>On 10 May 2016 the labour officer declined jurisdiction over the matter on the basis that it was improperly before him. He held that he had no jurisdiction to hear the matter since it was referred to him from the Disciplinary Authority and not from the appeals officer or the Appeals Committee. In his ruling the labour officer noted that the applicant should have proceeded by way of an appeal to the Labour Court in terms of s 92D of the Act instead of pursuing remedies provided for in s 8 of the Code of Conduct.</p> <p>On 20 September 2016 the applicant made an application for condonation of late noting of an appeal to the Labour Court. The application was dismissed for failure to exhaust local remedies. The dismissal caused the applicant to file an appeal against the decision of the Disciplinary Authority to the appeals officer/Appeals Committee. He also sought condonation for the late noting of the appeal.</p> <p>Without referring the matter to the appeals officer or the Appeals Committee, the General Secretary of the applicant’s former employer, acting on legal advice, sent a letter to the applicant advising him that his matter could not be heard as there was no provision in the Code of Conduct empowering the employer to hear an application for condonation. The applicant appealed to the labour officer, who upheld the decision of the employer.</p> <p>When the matter went for confirmation before the Labour Court, it refused to confirm the labour officer’s ruling. It instead referred the matter to the employer with a direction to set up an appeal structure to hear the matter, failing which the applicant would be deemed to have been reinstated without loss of salary.</p> <p>Dissatisfied with the decision of the Labour Court, the employer lodged an appeal to the Supreme Court. It contended that in terms of s 93(5a) of the Act, the labour officer can only approach the Labour Court for confirmation of his or her ruling when he or she has ruled against the employer. The contention was that the Labour Court had entertained a matter over which it had no jurisdiction. The applicant conceded the point. The matter was struck off the roll on the ground that the Labour Court had no jurisdiction over the matter.</p> <p>The applicant filed an application in the court <em>a quo</em> alleging that s 93(5a) of the Act violated his right to equal protection of the law, enshrined in s 56(1) of the Constitution. The contention was that s 93(5a) of the Act affords to the employer access to the remedy of testing the substantive correctness or fairness of a labour officer’s draft ruling by subjecting it to confirmation proceedings but deprives an employee of access to the same remedy.</p> <p>The contentions of the applicant found favour with the court <em>a quo</em>. It found that s 93(5a) of the Act violates ss 56(1), 56(3), 68(1) and 69(3) of the Constitution.</p> <p>The question for determination is whether or not the issue of the constitutionality of s 93(5a) of the Act was properly before the court <em>a quo</em>.</p> <p><strong>WHETHER THE QUESTION OF THE CONSTITUTIONALITY OF SECTION 93(5a) OF THE ACT WAS PROPERLY BEFORE THE HIGH COURT</strong></p> <p> </p> <p>            Confirmation proceedings are in the nature of a review. The Court, as the highest court in constitutional matters, is endowed with the power to review orders of constitutional invalidity made by lower courts in order to control declarations of constitutional invalidity made against the highest organs of State. See <em>Pharmaceutical Manufacturers Association of South Africa and Anor: In re Ex parte </em><em>President of the Republic of South Africa and Others</em> 2000 (2) SA 674 (CC) at paras 55-56.</p> <p>It is a general rule that a court should not decide constitutional matters unless it is necessary to do so and the order of the court will have a practical effect on the parties.</p> <p>In dealing with confirmation proceedings, the Court is required to firstly establish whether the constitutional question decided by the subordinate court was properly before it. The facts of the case must have justified a challenge to the validity of the legislative provision. In <em>S</em> v <em>Chokuramba</em> <em>supra</em> at p 5 of the cyclostyled judgment the Court held as follows:</p> <p>“The Court must first decide the question whether the constitutional validity of the law or conduct of the President or Parliament in respect of which the order of invalidity was made was a matter properly before the court <em>a quo</em> for determination, regard being had to the circumstances of the case: <em>Zantsi</em> v <em>Council of State, Ciskei and Ors</em> 1995 (4) SA 615 (CC) para 8.”</p> <p> </p> <p>            For a matter raising the question of the constitutionality of legislation to have been properly before a court of law, certain principles would have been observed. A party complaining of the invalidity of a legislative provision must be able to demonstrate that he or she or it has been harmed by the operation of the law the constitutionality of which is sought to be impugned, and that the order of the court will have some practical effect on the protection of his, her or its rights.</p> <p>In <em>Ashwander v Tennessee Valley Authority</em> 297 U.S. 288 (1936) at 346-347, the Supreme Court of the United States of America held that:</p> <p>”1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions</p> <p>‘is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.’</p> <p><em>Chicago &amp; Grand Trunk Ry.</em> v <em>Wellman,</em> 143 U.S. 339, 143 U.S. 345. Compare 49 U.S.<em> Veazie,</em> 8 How. 251; <em>Atherton Mills</em> v <em>Johnston,</em> 259 U.S. 13, 259 U.S. 15.</p> <p>2. The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it’.</p> <p><em>Liverpool, N.Y. &amp; P. S.S. Co. v Emigration Commissioners,</em> 113 U.S. 33, 113 U.S. 39; [<a name="T2/5" id="T2/5">Footnote 2/5</a>] <em>Abrams</em> v <em>Van Schaick,</em> 293 U.S. 188; <em>Wilshire Oil Co.</em> v <em>United States,</em> 295 U.S. 100. ‘It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.’ <em>Burton</em> v <em>United States,</em> 196 U.S. 283, 196 U.S. 295.</p> <p>3. The Court will not ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ <em>Liverpool, N.Y. &amp; P. S.S. Co.</em> v <em>Emigration Commissioners, supra; </em>compare<em> Hammond</em> v <em>Schapp Bus Line,</em> 275 U.S. 164, 275 U.S. 169-172.</p> <p>…</p> <p>5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.” (the underlining is for emphasis)</p> <p>           </p> <p>In <em>Liverpool, New York and Philadelphia Steamship Co</em> v <em>Commissioners of Emigration</em> 113 U.S. 33 (1885) the Supreme Court of the United States of America at p 39 held that:</p> <p>“It has no jurisdiction to pronounce any statute, either of a State or of the United States, void because [it is] irreconcilable with the Constitution except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered: one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.”</p> <p> </p> <p>An analysis of the facts of the case shows that the applicant was aggrieved by his dismissal from employment by his former employer in terms of s 6 of the Code of Conduct. While he was advised by his former employer to appeal in terms of s 8 of the Code of Conduct, that provision does not provide for appeals against decisions in disciplinary hearings conducted under s 6 of the Code of Conduct. He ought instead to have appealed to the Labour Court in terms of s 92D of the Act. The section provides that:</p> <p><strong>“92D Appeals to the Labour Court not provided for elsewhere in this Act</strong></p> <p>A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner as may be prescribed, appeal to the Labour Court.”</p> <p> </p> <p>The facts illustrate that, due to a misunderstanding of the law, the applicant pursued wrong remedies. He referred the matter to the labour officer in terms of s 8(6) of the Code of Conduct. The labour officer correctly decided that the applicant had used a wrong remedy because s 8(6) of the Code of Conduct created a right of appeal in respect of decisions of the employer, the appeals officer or the Appeals Committee. The matter of the complaint would have had to relate to the decision of the body concerned on an issue before it on appeal or the manner in which it handled the appeal. There must have been an appeal before the body concerned.</p> <p>Section 8(6) of the Code of Conduct reads as follows:</p> <p>“(6) A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee, as the case may be, may refer the case to a Labour Officer or an Employment Council Agent, as the case may be, within 7 working days from the day of receipt of such decision.”</p> <p> </p> <p>The applicant had not appealed to a body constituted for the purposes of s 8(6) of the Code of Conduct. He could not have approached the labour officer in terms of s 8(6) of the Code of Conduct in respect of a matter not arising from the exercise of powers by any of the bodies referred to in the subsection.</p> <p>The Labour Court was required to consider the application for condonation of non-compliance with the rules governing the noting of appeals to it and extension of time within which to appeal. It failed to determine an issue that was before it. The failure vitiated the order given. See <em>PG Industries (Zimbabwe) Ltd</em> v <em>Bvekerwa and Ors</em> SC 53/16, at p 7 of the cyclostyled judgment.</p> <p>The applicant’s matter did not at any time fall within the ambit of the provisions of s 93(5a) of the Act. What is provided for under s 93(5a) of the Act are acts which a labour officer, who would have made a draft ruling and order in terms of subs (5a) of s 93, must do in accordance with the procedure prescribed for reference of the draft ruling and order to the Labour Court for confirmation. Section 93(5a) of the Act cannot be viewed in isolation from the other provisions of s 93 of the Act, particularly subss (3), (5) and (5c), from which it derives the cause for its subject matter. No acts which were performed, or which were required to be performed, by a labour officer fell under the relevant provisions of s 93 of the Act to give rise to the question of the constitutionality of s 93(5a).</p> <p>It is not apparent how the impugned section injured the applicant, as the root of his grievance stemmed from the decision to dismiss him made by the Disciplinary Authority. A declaration of constitutional invalidity would not in any way benefit the applicant. It would not change the status of his dismissal. Nor would it provide him with a remedy.</p> <p>In <em>Uthukela District Municipality and Others</em> v <em>President of the Republic of South Africa and Others</em> 2003 (1) SA 678 (CC) at paras 11-12 it was held that:</p> <p>“If its order will have no practical effect, this Court will not deal with confirmation proceedings. If the order may, despite the repeal of the legislation under consideration, have some practical effect on the parties or on others, the Court will in its discretion decide whether or not to deal with the confirmation. In doing so all the circumstances of the case will be taken into account. Factors that must be taken into account include the nature and extent of any practical effect the order may have, ‘the importance of the issue raised, its complexity, and the fullness of the argument on the issue’.”</p> <p> </p> <p>There is no proper order for confirmation in terms of s 175(1) of the Constitution.</p> <p> </p> <p><strong>GARWE JCC:   I agree </strong></p> <p><strong>MAKARAU JCC:   I agree</strong></p> <p><strong>GOWORA JCC:   I agree</strong></p> <p><strong>PATEL JCC:   I agree </strong></p> <p><strong>GUVAVA JCC:   I agree </strong></p> <p><strong>MAVANGIRA JCC:   I agree</strong></p> <p><strong>MAKONI JCC:   I agree</strong></p> <p><strong>BERE JCC:   I agree</strong></p> <p><em>Civil Division of the Attorney General’s Office</em>, respondents’ legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2019/1/2020-zwcc-01.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=38184">2020-zwcc-01.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2019/1/2020-zwcc-01.pdf" type="application/pdf; length=231158">2020-zwcc-01.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/constitutional-law">Constitutional Law</a></li><li class="vocabulary-links field-item odd"><a href="/tags/constitutional-interpretation">Constitutional Interpretation</a></li><li class="vocabulary-links field-item even"><a href="/tags/constitutional-supremacy">Constitutional Supremacy</a></li><li class="vocabulary-links field-item odd"><a href="/tags/powers-certain-actors">Powers of certain actors</a></li><li class="vocabulary-links field-item even"><a href="/tags/powers-president">Powers of The President</a></li></ul></span><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/constitutional-practice">CONSTITUTIONAL PRACTICE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/constitutional-appeal">Constitutional appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-against-determination-disciplinary-committee-under-disciplinary-code">Appeal against determination of disciplinary committee under disciplinary code</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/labour-act-chapter-2801">Labour Act [Chapter 28:01]</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2016/53">PG Industries Zimbabwe (Pvt) Ltd. v Bvekerwa &amp; 34 Others (SC 53/2016 Civil Appeal No. SC 79/14) [2016] ZWSC 53 (17 November 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/constitutional-court-zimbabwe/2019/10">S v Chokuramba Justice For Children’s Trust Intervening As Amicus Curiae Zimbabwe Lawyers For Human Rights Intervening As Amicus Curiae (CCZ 10/19, Constitutional Application No. CCZ 29/15) [2019] ZWCC 10 (03 April 2019);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Mon, 27 Jan 2020 20:41:35 +0000 takudzwa 9459 at https://old.zimlii.org Nyagura v Lanzani Ncube N.O. & Others (CCZ 7/19 , Const. Application No. CCZ 53/18) [2019] ZWCC 07 (06 March 2019); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2019/7 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>Judgment No. CCZ 7/19</strong></p> <p><strong>Const. Application No. CCZ 53/18</strong></p> <p> </p> <p><strong>REPORTABLE (7)</strong>    </p> <p><strong>LEVI     NYAGURA</strong></p> <p><strong>v</strong></p> <p><strong>(1)     LANZANI     NCUBE,      N.O.</strong></p> <p><strong>(2)     THE     PROSECUTOR-GENERAL     OF     ZIMBABWE</strong></p> <p><strong>(3)   TAPIWA   FRESH   GODZI    (4)   MICHAEL   CHAKANDIDA</strong></p> <p> </p> <p><strong>CONSTITUTIONAL COURT OF ZIMBABWE</strong></p> <p><strong>HARARE, OCTOBER 29, 2018 &amp; MARCH 6, 2019</strong></p> <p> </p> <p><em>T R Mafukidze</em>, with him <em>J C Muzangaza</em> and <em>B Muzeba</em>, for the applicant</p> <p><em>O Zvedi,</em> for the first respondent</p> <p><em>J Uladi,</em> for the second, third and fourth respondents</p> <p> </p> <p><strong>Before: MALABA CJ, In Chambers</strong></p> <p>This is a chamber application for an order for direct access to the Constitutional Court (“the Court”) made in terms of r 21(2) of the Constitutional Court Rules SI 61/2016 (“the Rules”). </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>In 2014 the University of Zimbabwe awarded a Doctor of Philosophy degree to Mrs Ntombizodwa Grace Mugabe (nee Marufu) (“Mrs Mugabe”). The applicant was the Vice-Chancellor of the University at the time. The applicant stated that, to his knowledge, the degree was awarded in accordance with the University of Zimbabwe Act [<em>Chapter 25:16</em>] as well as the statutes and ordinances of the University. In February 2018 the applicant was arrested by members of the Zimbabwe Anti-Corruption Commission. He was charged with criminal abuse of office as defined in s 174(1)(a) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>], on the allegation that he had improperly awarded the degree to Mrs Mugabe.</p> <p> </p> <p>The applicant was arraigned before the Harare Magistrates Court on initial remand. He was suspended from his position as the Vice Chancellor of the University of Zimbabwe by the President pending finalisation of the criminal charges. On 23 July 2018 the second respondent issued authority to prosecute to the third and fourth respondents. He purported to do so in terms of s 259 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 (“the Constitution”). The third and fourth respondents are members of the Special Anti-Corruption Unit in the Office of the President and Cabinet (“the Unit”).</p> <p> </p> <p>When the trial began on 5 September 2018 the third and fourth respondents appeared as prosecutors in the case. The applicant objected to their right to prosecute at the public instance. The applicant raised three constitutional questions. The questions were –</p> <p>“i.        Whether the grant of authority to prosecute to the third and fourth respondents, purportedly under s 259 of the Constitution, being persons other than employees of the National Prosecuting Authority, was <em>ultra vires</em> s 259 of the Constitution?</p> <p> </p> <p>ii.         Whether the grant of the said authority is <em>ultra vires</em> s 263 of the Constitution and a wilful abdication of constitutional power by the Prosecutor-General, thereby infringing his rights aforesaid?</p> <p> </p> <ul> <li>Whether, in any event, the grant of the said authority undermines the protective scheme of inherent prosecutorial independence afforded him by s 258 through to s 263 of the Constitution, and as such a breach of hisrights aforesaid?”</li> </ul> <p> </p> <p> </p> <p>The third and fourth respondents opposed the application, which they perceived to be an application for referral of the three constitutional questions to the Court for determination. They did not deny being employed by the Unit, but argued that the authority to prosecute was under s 5(2) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] (“the CP&amp;E Act”) and as such was lawful.</p> <p> </p> <p>The court <em>a quo</em> found that while it was correct that the second respondent had no power under s 259 of the Constitution to grant prosecutorial authority, s 5(2) of the CP&amp;E Act allowed him to delegate prosecutorial functions to any legal practitioner entitled to practise in Zimbabwe.</p> <p> </p> <p>To put the reasoning of the court <em>a quo</em> and its decision into context, it is important to refer to the constitutional provisions and the law governing the delegation of authority to prosecute.</p> <p> </p> <p>Section 259 of the Constitution provides generally for the Office of the Prosecutor-General and other officers of the National Prosecuting Authority (“the NPA”). Section 259(10) provides:</p> <p>“(10) An Act of Parliament must provide for the appointment of a board to employ persons to assist the Prosecutor-General in the exercise of his or her functions, and must also provide —</p> <p> </p> <p>(<em>a</em>)        for the qualifications of those persons;</p> <p> </p> <p>(<em>b</em>) for the conditions of service, conduct and discipline of those persons;</p> <p> </p> <p>(<em>c</em>)        that in exercising their functions, those persons must be independent and impartial and subject only to the law and to the direction and control of the Prosecutor-General;</p> <p> </p> <p><em>(d</em>)        for the structure and organisation of the National Prosecuting Authority; and</p> <p> </p> <p>(<em>e</em>)        generally, for the efficient performance and well-being of the National Prosecuting Authority.”</p> <p> </p> <p>Sections 260 and 261 of the Constitution entrench the independence of the Prosecutor-General and officers of the NPA. They provide:</p> <p>“<strong>260 Independence of Prosecutor-General </strong></p> <p> </p> <p>(1) Subject to this Constitution, the Prosecutor-General —</p> <p> </p> <ul> <li>is independent and is not subject to the direction or control of anyone; and</li> </ul> <p> </p> <p>(<em>b</em>)        must exercise his or her functions impartially and without fear, favour, prejudice or bias.</p> <p> </p> <p>(2)        The Prosecutor-General must formulate and publicly disclose the general principles by which he or she decides whether and how to institute and conduct criminal proceedings.</p> <p> </p> <p><strong>261 Conduct of officers of National Prosecuting Authority </strong></p> <p> </p> <p>(1) The Prosecutor-General and officers of the National Prosecuting Authority must act in accordance with this Constitution and the law.</p> <p> </p> <p>(2) No officer of the National Prosecuting Authority may, in the exercise of his or her functions —</p> <p> </p> <p>(<em>a</em>)        act in a partisan manner;</p> <p> </p> <p>(<em>b</em>)        further the interests of any political party or cause;</p> <p> </p> <p>(<em>c</em>)        prejudice the lawful interests of any political party or cause; or</p> <p> </p> <p>(<em>d</em>)        violate the fundamental rights or freedoms of any person.</p> <p> </p> <p>(3) Officers of the National Prosecuting Authority must not be active members or office-bearers of any political party or organisation.</p> <p> </p> <p>(4) An Act of Parliament may make further provision to ensure the political neutrality of officers of the National Prosecuting Authority.”</p> <p> </p> <p> </p> <p>While the authority to prosecute was given in terms of s 259 of the Constitution, as appears <em>ex facie</em> the heading of the letter granting authority, s 259 does not make specific reference to granting of authority to prosecute by the Prosecutor-General. Section 259(10) of the Constitution leaves the details of the powers of appointment of officers to assist the Prosecutor-General in the exercise of his or her functions to an Act of Parliament. The Act of Parliament required by s 259(10) of the Constitution is the National Prosecuting Authority Act [<em>Chapter 07:20</em>] (“the Act), the preamble to which makes reference to ss 258 to 263 of the Constitution and seeks to give effect to them.</p> <p> </p> <p>Section 27 of the Act gives the Prosecutor-General power to engage any person with the relevant qualifications to perform services for the NPA in specified cases. It provides:</p> <p> </p> <p>“<strong>27      Engagement of persons to perform services in specific cases</strong></p> <p> </p> <p>(1) The Prosecutor-General may, in consultation with the Minister, engage under agreement in writing any person having suitable qualifications and experience to perform services for the Authority in specific cases.</p> <p> </p> <p>(2) The terms and conditions of service of a person engaged under subsection (1) shall be determined from time to time by the Minister in consultation with the Minister responsible for finance.”</p> <p> </p> <p> </p> <p>Section 5(2) of the CP&amp;E Act more specifically authorises the Prosecutor-General to grant prosecutorial authority to any legal practitioner with the requisite qualifications. It provides:</p> <p>“<strong>5 Delegation of functions by Prosecutor-General</strong></p> <p> </p> <p>(2) The Prosecutor-General may, when he or she deems it expedient, appoint any legal practitioner entitled to practise in Zimbabwe to exercise (subject to the general or specific instructions of the Prosecutor-General) all or any of the rights and powers or perform all or any of the functions conferred upon the Prosecutor-General by section 259 of the Constitution, this Act or any other enactment, whether or not they relate to criminal proceedings.”</p> <p> </p> <p>The court <em>a quo</em> found that reference to s 259 of the Constitution in the provisions of s 5(2) of the CP&amp;E Act made the mention of s 259 in the heading of the letters of appointment to the third and fourth respondents an innocuous inadvertence.</p> <p> </p> <p>The applicant accepted that the third and fourth respondents are legal practitioners entitled to practise law in Zimbabwe. The fact that they are members of the Unit in the Office of the President and Cabinet does not disqualify them from being appointed to perform prosecutorial functions in terms of s 5(2) of the CP&amp;E Act.</p> <p> </p> <p>In the result, the court <em>a quo</em> directed that the trial should proceed. The matter was postponed to 17 September 2018 for commencement of the trial.  </p> <p> </p> <p>The substantive application sought to be filed with the Court is based on the allegation that the decision by the court <em>a quo</em> that the constitutional questions raised by the applicant were frivolous and vexatious breached his right to equal protection of the law enshrined in s 56(1) of the Constitution.</p> <p> </p> <p>The applicant intends to approach the Court in terms of s 85(1) of the Constitution. Section 85(1) of the Constitution provides as follows:</p> <p>“<strong>85      Enforcement of fundamental human rights and freedoms </strong></p> <p> </p> <p>(1)        Any of the following persons, namely —</p> <p> </p> <p>(a)        any person acting in their own interests;</p> <p> </p> <p>(b)        any person acting on behalf of another person who cannot act for themselves;</p> <p> </p> <p>(c)        any person acting as a member, or in the interests, of a group or class of persons;</p> <p> </p> <p>(d)       any person acting in the public interest;</p> <p> </p> <p>(e)        any association acting in the interests of its members;</p> <p> </p> <p>is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this <em>Chapter</em> has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”</p> <p> </p> <p>The first respondent indicated that he was abiding by the decision of the Court. The second, third and fourth respondents opposed the application for leave for direct access. The grounds of opposition were the following -</p> <p> </p> <p>1.         The application is not properly before the Court as it does not cite the Office of the President and Cabinet which, according to the applicant, made the appointments.</p> <p> </p> <p>2.         There are no prospects of success if direct access is granted, in view of the fact that there are no constitutional issues raised in the application.</p> <p> </p> <p>3.         The applicant has other remedies available to him. The issues complained of are procedural issues of “Plea” covered by s 180(g) of the CP&amp;E Act. The principle of subsidiarity dictates that those issues be dealt with in the lower court.</p> <p> </p> <p>4.         There are disputes of fact in the matter. The second respondent disputes the allegation that the third and fourth respondents were appointed by the Office of the President and Cabinet to carry out prosecutorial duties. The second respondent stated that he delegated his prosecutorial functions to the third and fourth respondents in terms of the law.</p> <p> </p> <p>At the hearing of the application, Mr <em>Mafukidze </em>submitted that the Office of the President and Cabinet is not a necessary party because no relief is sought against it. He indicated that what the applicant was seeking was to set aside the authority granted by the Prosecutor-General to the third and fourth respondents. He submitted that, in terms of r 51 of the Rules, non-joinder is not a basis for removing a matter from the roll. He also argued that the issues <em>in casu</em> related to prosecutorial authority, an issue the Court could determine and as such a non-joinder plea was without merit.</p> <p> </p> <p> Mr <em>Mafukidze</em> argued that the argument by the respondents that the matter ought to be dealt with in the court <em>a quo</em> and not by the Court, as dictated by the principle of subsidiarity, was flawed. He averred that the issue that the court <em>a quo</em> was requested to refer to the Court related to the constitutionality of the authority to prosecute the applicant. He argued that the court <em>a quo</em> held that the constitutional questions raised were frivolous and vexatious. The trial could only proceed after the question whether the decision of the court <em>a quo</em> violates the applicant’s fundamental right to equal protection of the law had been determined by the Court. Mr <em>Mafukidze</em> argued that there were no disputes of fact.</p> <p> </p> <p>Mr <em>Uladi</em> submitted that the application was not properly before the Court. He argued that the applicant did not cite the President, whom he alleged made the appointments of the third and fourth respondents. The second, third and fourth respondents denied that the appointments were made by the President. They averred that the appointments were made by the Prosecutor-General, who issued certificates of authority to prosecute on his behalf. He submitted that the authority to prosecute was lawfully given as the conduct of the Prosecutor-General was within the terms of s 5(2) of the CP&amp;E Act. In his view, the fact that the third and fourth respondents were members of the Unit did not disqualify them from being appointed as prosecutors. Mr <em>Uladi</em> argued that the law authorised the Prosecutor-General to appoint a legal practitioner to conduct a prosecution on his behalf. The authority was not limited to legal practitioners employed in specific institutions.</p> <p> </p> <p><strong>DETERMINATION OF THE ISSUES</strong></p> <p> </p> <p>WHETHER THE MATTER IS PROPERLY BEFORE THE COURT</p> <p> </p> <p>Section 175(4) of the Constitution provides as follows:</p> <p>“(4) If a constitutional matter arises in any proceedings before a court, the person presiding over that court may and, if so requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or she considers the request is merely frivolous or vexatious.” (My emphasis)</p> <p> </p> <p> </p> <p>A constitutional matter, as defined in s 332 of the Constitution, must arise or be raised in the proceedings in the subordinate court. The person presiding may, if he or she is of the view that the determination of the constitutional issue by the Court is necessary for the purposes of the proceedings before him or her, <em>mero motu</em> refer the matter to the Court. If the matter is raised by any party to the proceedings, there must be a request by that party or any other party that the matter be referred to the Court for determination.</p> <p>If the presiding person is of the view that the determination of the constitutional matter by the Court is necessary for the purposes of the proceedings and that the request for a referral is not frivolous or vexatious, he or she is obliged to refer the matter to the Court for determination. If the presiding person is of the opinion that the request for a referral is frivolous or vexatious, he or she shall refuse the request.</p> <p> </p> <p>There must be a moment in the procedure set out in s 175(4) of the Constitution when the presiding person must address his or her mind to factors that answer a number of questions, such as whether what is raised is a constitutional question, whether the request to refer the matter to the Court is frivolous or vexatious, and whether the determination by the Court is necessary for the purpose of the proceedings before him or her. There must be evidence that a request for a referral of a constitutional matter to the Court was made to the presiding person.</p> <p> </p> <p>It is not compliance with the requirements of the procedure of referral of a constitutional matter to the Court prescribed under s 175(4) of the Constitution to say the constitutional question was raised and the presiding person declined to refer it to the Court. The reason is that it is the request to refer a constitutional question to the Court which must have been found to be frivolous or vexatious. It is not the constitutional matter itself that has to be found to be frivolous or vexatious.</p> <p> </p> <p>The reasons for approaching the Court set out in the applicant’s founding affidavit do not make mention of a request for referral being made to the court <em>a quo</em>. In para 8 of the applicant’s founding affidavit the applicant stated that:</p> <p>“8.       I set out the facts upon which the application is founded below. In short, I raised constitutional questions in criminal proceedings pending before the first respondent. The first respondent declined to refer the said constitutional questions that arose before him to this Court on the basis that the said constitutional questions were frivolous and vexatious in circumstances wherein, with respect, the questions raised were neither frivolous nor vexatious. Such refusal was, therefore, a breach of my right to the equal protection and benefit of the law. …</p> <p> </p> <p>37.       In short, the first respondent did not even attempt to consider the submissions made before him. It was not sufficient, with respect, to simply hold that ‘the application is frivolous and vexatious’ without illustrating that he had applied his mind to it and found the same frivolous and vexatious for given reasons. In the ABSENCE of a reasoned and considered ruling that the application was frivolous and vexatious, the refusal to refer to this Court the questions raised was a breach of the provisions of section 175(4) which oblige the first respondent to refer an application of this nature to this Court upon a consideration of the request in accordance with set criteria … .”</p> <p> </p> <p> </p> <p>            An application for leave for direct access to the Court on an application in terms of s 85(1) of the Constitution, alleging that the refusal by a presiding person to refer a constitutional matter is a violation of a fundamental right enshrined in <em>Chapter 4</em>, must comply with the requirements of s 175(4) of the Constitution.</p> <p> </p> <p>            An applicant for leave for direct access to the Court who seeks relief on the ground that the refusal by the presiding person to refer a matter is a violation of his or her or its fundamental right or freedom must show compliance on his or her or its part with the requirements of s 175(4) of the Constitution in the proceedings before the court <em>a quo</em>.</p> <p> </p> <p>            The applicant accepts that the court <em>a quo</em> decided that the constitutional questions raised were frivolous and vexatious. According to him, the decision violated his right to equal protection of the law in terms of s 56(1) of the Constitution. The applicant does not take issue with the fact that the court <em>a quo</em> did not determine the question whether the “request” for referral of the constitutional questions, if it was made, was frivolous or vexatious.</p> <p> </p> <p>            The case intended to be placed before the Court in terms of s 85(1) of the Constitution is that the decision by the court <em>a quo</em> that the constitutional questions were frivolous and vexatious violated the applicant’s right to equal protection of the law. The allegation is that the decision was made in the context of s 175(4) of the Constitution. For the right of access to the Court under s 85(1) of the Constitution to achieve the intended purpose, it must be shown that in the exercise of its power the court <em>a quo</em> violated the applicant’s right to equal protection under s 175(4) of the Constitution.</p> <p> </p> <p>            What is clear from the papers is the fact that the court <em>a quo</em> did not proceed in terms of s 175(4) of the Constitution. The court <em>a quo</em> decided the constitutional questions on the merits. The record of proceedings shows that the court <em>a quo</em> addressed its mind to the issue of the legality of the authority to prosecute given to the third and fourth respondents forming the subject of the constitutional questions. The court <em>a quo</em> decided that the authority to prosecute given to the third and fourth respondents was lawful, as it fell within the terms of s 5(2) of the CP&amp;E Act.</p> <p> </p> <p>            The controversy between the parties arising from the question of the legality of the authority given to the third and fourth respondents terminated with the decision that gave victory to the Prosecutor-General.</p> <p> </p> <p>            There was no consideration of the question whether a request for a referral of the constitutional questions raised by the applicant was frivolous or vexatious.</p> <p> </p> <p>The jurisdiction of a subordinate court under s 175(4) of the Constitution is mandatory and especially focused, in that it has to be exercised in respect of a specific question whether a request for a referral of a constitutional matter to the Court is merely frivolous or vexatious. At the time the decision is made, the subordinate court must be engaged with the question.</p> <p> </p> <p>            In this case, the evidence shows that the court <em>a quo</em> was not engaged with that question. It was, instead, engaged with the question whether the authority to prosecute was lawfully given to the third and fourth respondents. It looked at the merits of the question and decided that the authority to prosecute was lawfully given in terms of s 5(2) of the CP&amp;E Act.</p> <p> </p> <p>            The purpose of the exercise of the jurisdiction of a subordinate court under s 175(4) of the Constitution is to protect the process of the Court against frivolous or vexatious litigation. Section 175(4) of the Constitution does not authorise a subordinate court to determine the constitutional matter on the merits. If the subordinate court exercises its general power to determine the constitutional matter on the merits, it does so on the basis of some other law, not s 175(4) of the Constitution. The determination of a constitutional question by a subordinate court is of itself a judicial protection, unless the court has no jurisdiction over the matter. The remedy for the enforcement of the law prescribing the standard of jurisdiction is the appeal.</p> <p> </p> <p>            A determination by a subordinate court of a constitutional matter on the merits cannot be taken as a failure to provide the applicant with the judicial protection provided under s 175(4) of the Constitution. The determination of a constitutional matter on the merits cannot provide a ground for approaching the Court, alleging a violation of the right to equal protection of the law. Section 175(4) of the Constitution applies to cases where the constitutional matter raised is to be decided upon by the Court.</p> <p> </p> <p>            The subordinate court decides the question whether a request to refer the constitutional question to the Court is merely frivolous or vexatious. Once the subordinate court decides the constitutional question on the merits, s 175(4) of the Constitution ceases to be applicable. In other words, the alleged violation of the right to equal protection of the law, forming the ground on which the substantive application is intended to be filed with the Court in terms of s 85(1) of the Constitution should leave for direct access be granted, cannot, in the circumstances, be based on alleged failure to act in terms of s 175(4) of the Constitution.</p> <p> </p> <p>            The court <em>a quo</em> could not have addressed its mind to the question whether a request for referral of the constitutional questions was merely frivolous or vexatious after determining the constitutional questions itself.</p> <p> </p> <p>            There is a discordance between what happened and the relief sought. The relief sought is based on the allegation that there was refusal by the court <em>a quo</em> to refer the constitutional questions to the Court. There was no refusal. There was a determination of the constitutional questions on the merits. The decision terminated the controversy between the parties on the question whether the authority to prosecute was lawfully given to the third and fourth respondents, by giving victory to the Prosecutor-General.   The applicant was bound by the decision of the court <em>a quo</em> and had to stand trial.</p> <p> </p> <p>The Court can only exercise its jurisdiction to interpret, protect and enforce the Constitution in respect of matters that reach it from lower courts through the procedures prescribed by the Constitution and given effect to by the relevant provisions of the Rules. The substantive and procedural requirements of the relevant constitutional provisions must be complied with. It must be shown that the matter sought to be brought before the Court for determination falls within the ambit of matters for which the constitutional provisions invoked were designed.</p> <p> </p> <p>            The applicant invoked a wrong remedy in a bid to redress the decision of the court <em>a quo</em> on the constitutional questions he raised in the criminal proceedings in that court.</p> <p> </p> <p>            In <em>Mutero and Anor</em> v <em>Attorney-General</em> 2000 (2) ZLR 286 (S), it was held that it was incompetent for the court <em>a quo</em> to consider the issue of frivolity or vexatiousness of a request for a referral of a constitutional matter to the Court when it had already determined the question on the merits. It was held that once a subordinate court rendered a decision on the constitutional question, the dispute arising therefrom could only be resolved by way of appeal.</p> <p> </p> <p>            If the applicant was of the view that the decision by the court <em>a quo</em> was wrong, he had the remedy of appeal for the redress of the decision. A wrong judicial decision does not, however, give rise to a ground for an alleged violation of the right to equal protection of the law. No law provides protection to a litigant against the possibility of a judicial officer making a wrong decision.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p> </p> <p>In the result, it is ordered as follows:</p> <p> </p> <p>“The application be and is hereby dismissed with no order as to costs.”</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>            <strong>UCHENA JCC</strong>:         I agree</p> <p> </p> <p><strong>MAKONI JCC</strong>:         I agree</p> <p> </p> <p><em>Muzangaza, Mandaza and Tomana</em>, applicant’s legal practitioners</p> <p><em>Civil Division of the Attorney-General’s Office</em>, first respondent’s legal practitioners</p> <p> </p> <p><em>National Prosecuting Authority</em>, second, third and fourth respondents’ legal practitioners</p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2019/7/2019-zwcc-07.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=44304">2019-zwcc-07.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2019/7/2019-zwcc-07.pdf" type="application/pdf; length=234780">2019-zwcc-07.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-which-court">Appeal to which court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/arrest">ARREST</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/constitutional-law">CONSTITUTIONAL LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/constitution-zimbabwe-2013">Constitution of Zimbabwe 2013</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/constitutional-appeal">Constitutional appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/courts-constitutional-practice">Courts (Constitutional practice)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rules-court">Rules of court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/attorney-general">Attorney-General</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/powers-ag">powers of AG</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/prosecution-0">Prosecution</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/frivolous-and-vexatious">frivolous and vexatious</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dispute-facts-practice-and-procedure">Dispute of facts (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/prosecutor-see-criminal-procedure-prosecutor">PROSECUTOR See CRIMINAL PROCEDURE (Prosecutor)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div><div class="field-item odd"><a href="/zw/legislation/act/2014/4">National Prosecuting Authority Act [Chapter 7:20]</a></div><div class="field-item even"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1982/27">University of Zimbabwe Act, [Chapter 25:16] </a></div><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Sun, 14 Apr 2019 18:59:56 +0000 admin 9299 at https://old.zimlii.org Chamisa v Mnangagwa & 24 Others (CCZ 42/18) [2018] ZWCC 42 (24 August 2018); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2018/42 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>CCZ 42/18</strong></p> <p> </p> <p> </p> <p><strong>NELSON CHAMISA                                                                       Applicant</strong></p> <p> </p> <p><strong>and</strong></p> <p> </p> <p><strong>EMMERSON DAMBUDZO MNANGAGWA                              First Respondent</strong></p> <p> </p> <p><strong>JOSEPH BUSHA                                                                              Second Respondent </strong></p> <p> </p> <p><strong>MELBAH DZAPASI                                                                        Third Respondent </strong></p> <p> </p> <p><strong>NKOSANA MOYO                                                                          Fourth Respondent </strong></p> <p> </p> <p><strong>NOAH MANYIKA                                                                           Fifth Respondent </strong></p> <p> </p> <p><strong>HARRY PETER WILSON                                                              Sixth Respondent </strong></p> <p> </p> <p><strong>TAURAI MTEKI                                                                              Seventh Respondent </strong></p> <p> </p> <p><strong>THOKOZANI KHUPE                                                                    Eighth Respondent</strong></p> <p> </p> <p><strong>DIVINE MHAMBI                                                                           Ninth Respondent</strong></p> <p> </p> <p><strong>LOVEMORE MADHUKU                                                              Tenth Respondent </strong></p> <p> </p> <p><strong>PETER MUNYANDURI                                                                 Eleventh Respondent </strong></p> <p> </p> <p><strong>AMBROSE MUTINHIRI                                                                Twelfth Respondent </strong></p> <p> </p> <p><strong>TIMOTHY JOHANNES CHIGUVARE                                        Thirteenth Respondent </strong></p> <p> </p> <p><strong>JOICE MUJURU                                                                              Fourteenth Respondent </strong></p> <p> </p> <p><strong>KWANELE HLABANGANA                                                         Fifteenth Respondent </strong></p> <p> </p> <p><strong>EVARISTO CHIKANGA                                                                Sixteenth Respondent </strong></p> <p> </p> <p><strong>DANIEL SHUMBA                                                                          Seventeenth Respondent </strong></p> <p> </p> <p><strong>VIOLET MARIYACHA                                                                  Eighteenth Respondent </strong></p> <p> </p> <p><strong>BLESSING KASIYAMHURU                                                        Nineteenth Respondent </strong></p> <p> </p> <p><strong>ELTON MANGOMA                                                                       Twentieth Respondent </strong></p> <p> </p> <p><strong>PETER GAVA                                                                               Twenty-first Respondent </strong></p> <p> </p> <p><strong>WILLARD MUGADZA                                                            Twenty-second Respondent </strong></p> <p> </p> <p><strong>ZIMBABWE ELECTORAL COMMISSION                           Twenty-third Respondent </strong></p> <p> </p> <p><strong>THE CHAIRPERSON OF THE ZIMBABWE</strong></p> <p><strong>ELECTORAL COMMISSION                                                  Twenty-fourth Respondent</strong></p> <p> </p> <p><strong>THE CHIEF EXECUTIVE OFFICER OF THE</strong></p> <p><strong>ZIMBABWE ELECTORAL COMMISSION                              Twenty-fifth Respondent</strong></p> <p> </p> <p><strong><u>DECISION</u></strong></p> <p> </p> <p>MALABA CJ: This is the unanimous judgment of the Court. It must be noted that it, however, does not contain the full reasons thereof.  These will be issued in due course. </p> <p>On 30 July 2018 the Republic of Zimbabwe held harmonised Parliamentary, Local Government and Presidential elections. The applicant and the first respondent participated as Presidential candidates along with twenty-one others.  </p> <p>On 3 August 2018 the twenty-fourth respondent, acting in terms of section 110(3)(f)(ii) of the Electoral Act [<em>Chapter 2:13</em>] (“the Act”), declared the first respondent, as the candidate who had received more than half the number of votes cast, to be duly elected as the President of the Republic of Zimbabwe, with effect from that date.</p> <p>The applicant was aggrieved by the declaration of the first respondent as having been duly elected as the President of the Republic of Zimbabwe. He lodged an application in terms of section 93(1) of the Constitution of Zimbabwe Amendment (No. 20) 2013 (“the Constitution”), challenging the validity of the election of the first respondent as the President of the Republic of Zimbabwe. Section 93 provides as follows:</p> <p>“<strong>93    Challenge to presidential election</strong></p> <p>(1)     Subject to this section, any aggrieved candidate may challenge the validity of an election of a President or Vice-President by lodging a petition or application with the Constitutional Court within seven days after the date of the declaration of the results of the election.</p> <p>(2)     The election of a Vice-President may be challenged only on the ground that he or she was not qualified for election.</p> <p>(3)     The Constitutional Court must hear and determine a petition or application under subsection (1) within fourteen days after the petition or application was lodged, and the court’s decision is final.”</p> <p>The applicant seeks the following relief –</p> <ol> <li>A <em>declaratur</em> to the effect that –</li> </ol> <p>(i)      The Presidential election of 2018 was not conducted in accordance with the law and was not free and fair.</p> <p>(ii)     The election results announced by the Commissioners of the Zimbabwe Electoral Commission on the 2<sup>nd</sup> of August 2018 and the concomitant declaration of that same date by its chairperson to the effect that Emmerson Dambudzo Mnangagwa was to be regarded as the duly elected President of the Republic of Zimbabwe with effect from the 2<sup>nd</sup> of August 2018 is in terms of section 93(4)(b) of the Constitution of Zimbabwe as read together with section 111(2)(b) of the Electoral Act [<em>Chapter 2:13</em>] declared unlawful, of no force or effect and accordingly set aside.</p> <p>(iii)    The applicant, Nelson Chamisa, is in terms of section 93(4) of the Constitution of Zimbabwe declared the winner of the presidential election held on the 30<sup>th</sup> of July 2018;</p> <ol> <li>An order to the following effect –</li> </ol> <p>(i)      The twenty-fifth respondent shall publish in the <em>Government Gazette</em> this order and the declaration of the applicant to the office of the President of the Republic of Zimbabwe; alternatively –</p> <p>(ii)     In terms of section 93(4)(b) an election to the office of the President of the Republic of Zimbabwe shall be held within sixty days of this order; and</p> <p>(iii)    Costs of this application shall be borne by the Zimbabwe Electoral Commission and any such respondent as opposes it.</p> <p>The application was opposed by the first, fifth, sixth, seventeenth, eighteenth, twentieth, twenty-third, twenty-fourth and twenty-fifth respondents. For reasons that will be set out in the full judgment, the court ruled that the opposing papers filed by the fifth, sixth, seventeenth and twentieth respondents were –</p> <ol> <li>not properly before the Court, and</li> <li>should be expunged from the record with no order as to costs.</li> </ol> <p>The sixth and eighteenth respondents indicated that they would abide by the decision of the Court.</p> <p><strong>Whether the application is properly before the Court</strong></p> <p>The respondents took several points <em>in limine</em> including that the application filed by the applicant was not properly before the Court. This was because, although filed within seven days, as is stipulated by section 93 of the Constitution, the application was served on the respondents on the eighth day in violation of rule 23(2) of the Rules of the Constitutional Court 2016 (“the Rules”).</p> <p>The Constitution does not refer to week days but days. This is to be taken to mean seven <strong>calendar days and includes Saturdays and Sundays</strong>.</p> <p>In terms of r 23(2) of the Constitutional Court Rules, 2016, the application <strong>shall </strong>be lodged with the Registrar and shall be served on the respondent <strong>within seven (7) days of the declaration of the result of that election.</strong></p> <p>The first respondent was declared the duly elected president on 3 August 2018. In terms of <strong>s 93(1) of the Constitution as read with r 23(2) of the Constitutional Court Rules, </strong>the applicant had until 10 August 2018 to file and serve the application on the respondents.</p> <p>The applicant appears to have been cognizant of the reckoning of days and time limitations prescribed by the Constitution and waited until the last day to file his application shortly before close of the Constitutional Court Registry on 10 August 2018. He was entitled by law to do so.</p> <p>Having done so, the applicant was then faced with a further obligation to serve the process on all the respondents on the same day. The applicant could only do so through the Sheriff of Zimbabwe in terms of r <strong>9(7) of the Constitutional Court Rules</strong>.</p> <p>The applicant indicates that he did so. The Sheriff had until 10 pm that same evening to effect service in compliance with the Rules. The affidavits submitted by the respondents show that the applicant had in fact attempted service in his own capacity and without assistance of the Sheriff on 10 August 2018.</p> <p>It is common cause that the application was eventually served on the respondents on 11 August 2018, outside of the timeframes stipulated in the Constitution and contrary to the provisions of the Constitutional Court Rules.</p> <p>The same limitation applied to the respondents, who were served with the application on Saturday 11 August 2018. The notices of opposition would have been due within three days from that date, being 14 August 2018.</p> <p>In terms of <strong>s 336(2) of the Constitution of Zimbabwe</strong>:</p> <p>“Subject to this Constitution, whenever the time for doing anything in terms of this Constitution ends or falls on a Saturday, Sunday or public holiday, the time extends to and the thing may be done on the next day that is not a Saturday, Sunday or public holiday.”</p> <p>The <em>dies induciae</em> having expired on 14 August 2018, a public holiday in Zimbabwe, the notices of opposition both had to be filed on the next business day thereafter, being 15 August 2018. They were duly and properly lodged with the Registrar in terms of the law.</p> <p>The applicant clearly breached the Rules of the Court, and filed a defective application. However, due to the importance of the matter and the public interest, the Court has the power to condone the non-compliance with the Rules in the interests of justice.</p> <p>An application for condonation of this non-compliance, <em>albeit</em> opposed by the respondents, was made for the applicant. This Court is prepared to, and does, grant the application due to the importance of the matter and the public interest involved.</p> <p>The other points <em>in limine </em>raised by the respondents will be fully addressed in the main judgment<em>.</em></p> <p>On the merits, the applicant alleges that the first respondent did not win the election due to the fact that, in the run up to the elections, the twenty-third and twenty-fourth respondents were involved in a litany of constitutional and electoral law violations, all of which had the effect of undermining the just conduct of the elections. Some of the alleged violations related to –</p> <ul> <li>Lack of independence of the Zimbabwe Electoral Commission;</li> </ul> <p>2   Failure of State owned media to comply with s 61(4) of the Constitution;</p> <p>3   Conduct of traditional leaders and rogue security elements;</p> <ul> <li>Failure to abide by general principles affecting conduct of elections;</li> </ul> <ul> <li>ZEC’s responsibility to compile voter’s rolls;</li> </ul> <p>6   Wearing of partisan clothing;</p> <ul> <li>Failure to provide a complete Voters’ Roll;</li> </ul> <ul> <li>Voter Education;</li> </ul> <ul> <li>Design of Presidential ballot paper;</li> </ul> <p>10 Fixing of polling station returns (V11 forms) on the outside of polling stations;</p> <p>11 Postal Ballots;</p> <p>12 Counting of Presidential Ballots;</p> <p>13 Undue influence, threats, injury, damage, harm or loss to voters; and</p> <p>14 Bribery, provision of seed and fertiliser packs.</p> <p>The Court notes that the High Court of Zimbabwe was in recent months seized with and determined issues pertaining to –</p> <ol> <li>The conduct of postal voting;</li> <li>The design of the Presidential ballot;</li> </ol> <ul> <li>The release of voters’ rolls with voters’ photographs to the parties; and</li> </ul> <ol> <li>the twenty-third respondent’s obligation to facilitate voting by civil servants engaged in election duties on election day.</li> </ol> <p>These judgments are extant and the Court will therefore not, at this juncture, address the applicant’s contentions in respect of those issues.</p> <p>The Court will also not, in this abridged version of its judgment, address the totality of the allegations made by the applicant, as listed above. This will be done in the main judgment.</p> <p><strong>The standard of proof in election petitions</strong></p> <p>In terms of authorities of this and other Courts, the declaration of results in terms of s 110((3)(f)(ii) of the Act creates a presumption of validity of that declaration.</p> <p>The <em>onus</em> and burden of proof in this application therefore rests with the applicant and it is for him to prove to the satisfaction of the Court that there were irregularities in the conduct of the election that warrant the relief sought.</p> <p>The general position of the law is that no election is declared to be invalid by reason of any act or omission by a returning officer or any other person in breach of his official duty in connection with the election or otherwise of the appropriate electoral rules if it appears to the Court that the election was conducted substantially in accordance with the law governing elections and that the act or omission did not affect the result.</p> <p>As an exception to this general position, the Court will declare an election void when it is satisfied from the evidence provided by an applicant that the legal trespasses are of such a magnitude that they have resulted in substantial non-compliance with the existing electoral laws.</p> <p>Additionally, the Court must be satisfied that this breach has affected the results of the election. In other words, an applicant must prove that the entire election process is so fundamentally flawed and so poorly conducted that it cannot be said to have been conducted in substantial compliance with the law. Additionally, an election result which has been obtained through fraud would necessarily be invalidated.</p> <p>From the aforegoing, the Court will only invalidate a presidential election in very limited and specific circumstances, if:</p> <ol> <li>The results are a product of fraud.</li> </ol> <ol> <li>The elections were so poorly conducted that they could not be said to have been in substantial compliance with the law.</li> </ol> <p>It is for the applicant to prove to the satisfaction of the Court that the election was conducted in a manner which fell substantially below the statutory requirements of a valid election and that the result was materially affected warranting a nullification of the result or invalidation of the election.</p> <p> </p> <p><strong>THE NEED FOR THE APPLICANT TO HAVE PRODUCED SOURCE EVIDENCE</strong></p> <p>A significant part of the applicant’s challenge related to the result and figures announced by the Electoral Commission. Allegations were made that the results announced were incorrect and did not reflect the true will of the people of Zimbabwe.</p> <p>In so doing the applicant alleged irregularities relating to voter patterns, polling station returns, inflation of votes, over voting and ghost voting, among other infractions, which will be dealt with. In short it is alleged that there was rigging.</p> <p>The applicant made general allegations against the first respondent. No direct allegations of personal manipulation of the process were made against the first respondent. All allegations were made without particularity and specificity. This would have been required to prove allegations of complicity with the Zimbabwe Electoral Commission by the winner of the election, alleged to be the deliberate beneficiary of the allegedly improper election.</p> <p>Nevertheless, if the applicant had proved that the Zimbabwe Electoral Commission committed irregularities and met the legal requirements of such a petition as to the requisite standard of proof, this alone would have been sufficient to invalidate the election even in the absence of direct involvement by the first respondent.</p> <p>The applicant also made several allegations of irregularities against the Zimbabwe Electoral Commission related to its failure to discharge its obligations in terms of the law. No proof or evidence was adduced by the applicant of these allegations.</p> <p>The best evidence in this instance would have been the contents of the ballot boxes themselves. That is the primary source evidence. Evidence of the contents of the ballot boxes compared to the announcements by the Zimbabwe Electoral Commission and the evidence within the applicant’s knowledge would have given the Court a clear picture of any electoral irregularities or malpractices if any had occurred. No such proof was adduced by the applicant to support his allegations.</p> <p>The electoral law is designed to protect the vote. The protection of the ballot cast by every citizen who participated in the election is fundamental. It is one that the Court should guard jealously.</p> <p>The avenues available to an aggrieved candidate are meant to ensure that he or she has all the evidence available to him or her to assist the Court.</p> <p>It follows that when the result was declared in the early hours of Friday 3 August 2018 the applicant knew he was an aggrieved candidate. He may not have known the exact or precise reason why he was aggrieved but the law-makers in their wisdom created an avenue for the applicant to ensure that he had all the evidence necessary to prove his case if he wished to exercise his rights to challenge the result. Time was on his side to obtain such evidence from the election residue.</p> <p>The applicant’s remedies to access the ballot and election residue are in the Electoral Act under <strong>ss 67A and 70.</strong> Under s 67A he could have sought a recount of the votes within forty-eight hours; whilst under s 70 he could have approached the Electoral Court for an order for the unsealing of the ballots.</p> <p>These remedies are designed to protect each aggrieved candidate. They ensure that a decision to embark on unnecessary litigation challenging the validity of an election is not made. They also ensure that a litigant who embarks on litigation has the necessary evidence with which to establish his or her case. In that way, any doubt as to whether or not the election itself was properly conducted on the election day, and whether the true expression of the will of the voters was announced would have been addressed by the parties before the application was lodged.</p> <p>The remedies provided for by the electoral law do not only protect the right of an aggrieved candidate to information, they direct him or her to the source of the kind of evidence that would be required to prove the allegations of irregularities committed by the Zimbabwe Electoral Commission in the conduct of the election.  So these are remedies not for the respondents’ benefit. They are meant to protect the rights of those who are aggrieved by the results of the Presidential election.</p> <p>Armed with the evidence either from a recount where the figures are alleged to be incorrect, or analysis of the contents of the unsealed boxes, the applicant would have had a clear and indisputable picture of the outcome of the election. He would have been clear whether any malpractices and irregularities regarding the actual votes cast and results announced would be substantiated. He chose not to exercise this right.</p> <p>The electoral law protects the voters and the candidate in the process involved. This is from the delivery of the ballot papers to the polling station, to the collection of the ballot paper, to voting in secret in the booth, to counting of the ballots, and the sealing of the ballot boxes at the end of the election.</p> <p>The applicant was at large to have his polling agents at each and every polling station around the country. Observers were also free to participate in the process. The applicant’s agents would have observed the voters arriving, being given the ballot papers as applicants for these papers before the presiding officers, going on to vote in secret in the booths, and having the votes counted in their presence if they were there. At the end of the counting all agents present would have signed the V11 forms if they so wished and given copies.</p> <p>If the applicant had placed before the Court the V11 forms from all the polling stations where he could have had polling agents, a simple analysis of those V11 forms against the V11 forms in the ballot boxes would easily have done the following –</p> <p>(a) It would have disposed of any questions regarding the number of votes for any given polling station or constituency,</p> <p>(b) It would have addressed any question of over-voting;</p> <p>(c) It would have debunked allegations of upsurges of voters after a particular time, for instance, what is alleged to have happened in Mashonaland Central Province;</p> <p>(d) It would have addressed issues of differences in voting patterns and numbers of votes for parliamentary and presidential elections,</p> <ul> <li>It would also have addressed issues of improbability of similar and identical results at polling stations.</li> <li>It would have addressed questions regarding the accuracy of the result and data provided by the Commission.</li> </ul> <p>In essence the entire challenge to the correctness of the figures relating to the result of the election would have been easily resolved. If there was any irregularity, it would have been easily detectable.</p> <p>When pressed why the primary source evidence was not adduced, the applicant’s practitioner gave a bald and unsubstantiated allegation that the election residue had been tampered with. It was argued by the applicant’s counsel that the residue was a poisoned chalice. In other words, by the time you would have sought to have the ballot boxes unsealed they would already have been manipulated. It was argued that such an exercise would have been futile. The Zimbabwe Electoral Commission contends that the prescribed procedures were complied with.</p> <p>Logic therefore dictates that if the applicant and his agents (or any other political candidate whose agent had the forms) had the V11 forms in their custody, they could easily have compared them against the residue and further compared them against the result declared.</p> <p>Even assuming the applicant did not have agents at every polling station, a sample constituency could have been used. If there were instances where for one reason or another the forms were not recorded as they should have been, specific evidence detailing the gaps or discrepancies should have been produced to the Court. Such evidence could then have been used to support the allegations of malpractice levelled against the Zimbabwe Electoral Commission. Whether the evidence adduced was sufficient proof of the allegations of irregular conduct made against the Zimbabwe Electoral Commission would have become a separate question for determination.</p> <p>In the second instance, the applicant argues that the crux of his case stands even without that primary evidence. It was argued that an attack on the accuracy and correctness of the figures produced by the Zimbabwe Electoral Commission itself would suffice to invalidate the election. The Zimbabwe Electoral Commission specifically and systematically explained and answered the allegations that were made against it.</p> <p><strong>ON THE CASE PRESENTED BY THE APPLICANT OF IRREGULARITIES</strong></p> <p>The applicant made several generalised allegations of electoral malpractices against the Zimbabwe Electoral Commission. He made a startling submission that these generalised allegations would suffice to prove the case without resort to the primary source evidence.</p> <p>The Zimbabwe Electoral Commission nonetheless took time to analyse the allegations against it and produced clear and tangible evidence to refute the allegations, making it incumbent on the applicant to discharge the <em>onus</em> which was on him. The <em>onus</em> to prove the case is not on the person accused. The accused person does not have to prove his or her innocence. The respondents in this case needed only to respond.</p> <p><strong>Signed and unannotated V11 forms</strong></p> <p>The Zimbabwe Electoral Commission proved through the V11 forms produced that the allegations that some forms had been signed and not populated was false, as there appears to have been a deliberate fabrication of evidence with an intent to mislead the Court. Without access to the sealed ballot boxes residue, this allegation simply remains as refuted.</p> <p><strong>Disenfranchisement of 40,000 teachers</strong></p> <p>The applicant alleged that some 40,000 teachers were denied their right to vote on the election day and that this had a direct effect on the result. The allegation was very general and unsubstantiated. It is not evident how the figure of 40,000 was calculated.</p> <p>There was no evidence from the teachers themselves that they were registered voters who wanted to exercise their right to vote and were posted against their will. On the contrary, it was shown by the Zimbabwe Electoral Commission that some teachers had deliberately opted not to vote in favour of being posted to stations where such right could not be exercised.</p> <p>The Constitution gives every Zimbabwean citizen who is eligible to vote a right to vote. It is not an obligation under our Constitution to vote. There was no evidence how many of these were registered voters. There was no evidence of the effect this allegation even if it were proven would have had on the result. There was no guarantee that every teacher would have voted for the applicant.</p> <p>The allegations relating to ghost polling stations, or polling stations created at the time of voting, lacked specificity and particularity. They were in any case disproved by the evidence adduced for the twenty-third and twenty-fourth respondents. And these are the kind of allegations that would have been easily proved by the evidence in the sealed ballot boxes.</p> <p><strong>THE ELECTION RESULT AND THE ADMISSION BY ZEC</strong></p> <p>On 3 August 2018 the Zimbabwe Electoral Commission announced that Emmerson Dambudzo Mnangagwa, having achieved the required 50% plus one vote from the election, was declared to be the duly elected President of Zimbabwe. The declaration was made in terms of <strong>section 110(3)(f)(ii)</strong> of the <strong>Electoral Act</strong>, which reads:</p> <p>“<strong>(f)    subject to paragraph (h), after the number of votes received by each candidate as shown in each constituency return has been added together in terms of paragraph (e), the Chairperson of the Commission (or, in his or her absence, the Deputy Chairperson or, in his or her absence, a Commissioner designated by the Chairperson) shall —</strong></p> <p><strong>   (i)    where there are two candidates, forthwith declare the candidate who has received the greater number of votes to be duly elected as President of the Republic of Zimbabwe with effect from the day of such declaration; or</strong></p> <p><strong>   (ii) where there are more than two candidates, <u>forthwith declare the candidate who has received more than half the number of votes to</u> be duly elected as President of the Republic of Zimbabwe with effect from the day of such declaration; or</strong></p> <p><strong>   (iii) where there are more than two candidates, and no candidate has received more than half the number of votes, forthwith declare that a runoff presidential election shall be held on the date fixed by the President in terms of section 38(1)(a)(iii) (that is to say, a fixed date not less than twenty-eight and not more than forty-two days after the polling day or last polling day, the case may be, of the original election):</strong></p> <p><strong>Provided that the Electoral Court, on the application of the Commission, may for good cause extend the period;</strong></p> <p><strong>                        …”</strong></p> <p> </p> <p>The declaration as set out in these provisions of the law is the legal event. This is upon any candidate reaching the 50% plus one vote threshold. Whether a candidate has received 50% plus one vote of the total number of votes cast is a question of fact. The declaration can only be changed or altered by this Court in terms of <strong>s 110 (3)(i)</strong>, which reads<strong>:</strong></p> <p>“<strong>(i) a declaration by the Chairperson of the Commission (or, in his or her absence, the Deputy Chairperson or, in his or her absence, a Commissioner designated by the Chairperson) under paragraph (h) [shall] be final, subject to reversal on petition to the Electoral Court that such declaration be set aside or to the proceedings relating to that election being declared void;”.</strong></p> <p>The declaration itself is final subject to the requirements of reversal. The Zimbabwe Electoral Commission made a critical admission that the exact figures were incorrect and minor adjustments were made after data capturing errors were corrected. It was submitted that this affected the figures relating to the first respondent’s win by 0.1% but did not affect the result of the election.</p> <p>It is important to understand what the result of an election is. The result of the election is the declaration of a winner having reached the 50% plus one vote, no other thing. Any votes after that point have no bearing on the result of the election.</p> <p>The amendment by the Zimbabwe Electoral Commission has no effect at all on the result of the election and the declaration as interpreted in this case. In fact, an error in counting and amendment of figures is envisaged in the Act itself, which makes the provisions of s 110 subject to those of s 67A. The law allows for the adjustment. If the applicant was aggrieved by the counting and figures availed, he should have utilised the remedies availed to him by statute to get the relevant evidence.</p> <p>In this case, the applicant, in our view, needed more evidence than just the mere admission by the Zimbabwe Electoral Commission of the inaccuracy of the figures to show that the result was affected. If it was and there was in fact no winner having 50% + 1 vote, there would be grounds for a re-run or any other appropriate remedy. The applicant chose not to pursue this avenue.</p> <p><strong>CONCLUSION</strong></p> <p>In the final analysis, the Court finds that the applicant has failed to place before it clear, sufficient, direct and credible evidence that the irregularities that he alleges marred the election process materially existed. The applicant did not prove the alleged irregularities as a matter of fact.</p> <p>It would be unnecessary in the circumstances to ask and answer the question whether irregularities materially affected the result of the election. As already indicated, it is an internationally accepted principle of election disputes that an election is not set aside easily merely on the basis that an irregularity occurred. There is a presumption of validity of an election.</p> <p>This is so because as long as the election was conducted substantially in terms of the Constitution and all governing laws it would have reflected the will of the people. It is not for the Court to decide elections; it is the people who do so. It is the duty of the courts to strive in the public interest to sustain that which the people have expressed their will in. Therefore, the application ought to be dismissed.</p> <p><strong>ORDER</strong></p> <p>In the result, the following order is made –</p> <p>(1)     The application is dismissed with costs.</p> <p>(2)     Emmerson Dambudzo Mnangagwa was duly elected President of the Republic of Zimbabwe.</p> <p>(4)     In terms of section 93(4)(a) of the Constitution of Zimbabwe EMMERSON DAMBUDZO MNANGAGWA is duly declared the winner of the Presidential election held on the 30<sup>th</sup> of July 2018.</p> <p><strong>GWAUNZA DCJ</strong>: I agree</p> <p><strong>GARWE JCC:</strong> I agree</p> <p><strong>MAKARAU JCC:</strong> I agree</p> <p><strong>HLATSHWAYO, JCC:</strong> I agree</p> <p><strong>PATEL JCC:</strong> I agree</p> <p><strong>BHUNU JCC:</strong> I agree</p> <p><strong>UCHENA JCC:</strong> I agree</p> <p><strong>MAKONI JCC:</strong> I agree</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2018/42/2018-zwcc-42.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28716">2018-zwcc-42.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2018/42/2018-zwcc-42.pdf" type="application/pdf; length=196097">2018-zwcc-42.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/president">President</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/constitutional-appeal">Constitutional appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/courts-constitutional-practice">Courts (Constitutional practice)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/parties">Parties</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/court">COURT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/officer-court">Officer (COURT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/sheriff-and-his-deputies">Sheriff and his deputies</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rules-court">Rules of court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/elections">Elections</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-elections">Appeal (ELECTIONS)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/constituencies-and-wards">Constituencies and wards</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/election-petition">Election petition</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/election-petition-time-limits">Election petition time limits</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/electoral-act-chapter-201">Electoral Act [Chapter 2:01]</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/presidential-election">Presidential election</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/validity-election">Validity of election</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/voters-roll">Voters roll</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/zimbabwe-electoral-commission">Zimbabwe Electoral Commission</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/evidence">evidence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/affidavits-evidence">Affidavits (EVIDENCE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/credibility-evidence">Credibility (EVIDENCE)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/25">Electoral Act [Chapter 2:13]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Sun, 26 Aug 2018 16:48:29 +0000 admin 9093 at https://old.zimlii.org