Courts (Constitutional practice) https://old.zimlii.org/taxonomy/term/9797/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 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 Gonese & Another v President of Zimbabwe & 2 Others (CCZ 10/18, Constitutional Application No. 80/16) [2018] ZWCC 10 (31 October 2018); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2018/10 <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/2018/10/2018-zwcc-10.pdf" type="application/pdf; length=287079">2018-zwcc-10.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/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/executive-powers">Executive powers</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/locus-standi">Locus standi</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/parliament">Parliament</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/president">President</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/executive-powers-0">executive powers of</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/public-authority">Public authority</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/separation-powers">Separation of powers</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/courts-constitutional-practice">Courts (Constitutional practice)</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/2016/12">Mudzuru &amp; Another v Ministry of Justice, Legal &amp; Parliamentary Affairs (N.O.) &amp; Others (Const. Application No. 79/14, CC 12-15) [2015] ZWCC 12 (20 January 2016);</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/2001/222001">Urban Councils Act, 2015 [Chapter 29:15]</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> Mon, 05 Nov 2018 07:49:04 +0000 admin 9139 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 Glens Removal & Storage Zimbabwe (Private) Limited (CCZ 6/17) [2017] ZWCC 6 (05 March 2014); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2014/6-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE (8)</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>GLENS  REMOVAL  AND  STORAGE  ZIMBABWE  (PRIVATE)  LIMITED</strong></p> <p> </p> <p><strong>v</strong></p> <p> </p> <p><strong>PATRICIA     MANDALA</strong></p> <p> </p> <p> </p> <p><strong>CONSTITUTIONAL COURT OF ZIMBABWE</strong></p> <p><strong>CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC &amp; GUVAVA JCC</strong></p> <p><strong>HARARE, MARCH 5, 2014</strong></p> <p> </p> <p> </p> <p><em>Ms F Mahere</em>, for the applicant/appellant</p> <p> </p> <p><em>E Matinenga</em>, for the respondent</p> <p> </p> <p><strong>            CHIDYAUSIKU CJ:</strong>   This matter was initially set down on the Supreme Court roll as an appeal matter. At the hearing of the appeal, the respondent submitted that the matter raised a constitutional issue of whether the law of <em>parate executie</em> violates the access to the courts provision, s 69(3) of the current Constitution of Zimbabwe (“the Constitution”). Mr <em>Matinenga</em> applied for a referral to the Constitutional Court for the determination of that issue. The application was granted and the court issued the following order:</p> <p> </p> <p><strong>“IT IS ORDERED BY CONSENT THAT -</strong></p> <p> </p> <p>1.         The matter be and is hereby postponed <em>sine die</em> with no order as to costs, the reason being that the matter raises a constitutional issue as to whether the law of <em>parate executie</em> violates section 69(3) of the Constitution of Zimbabwe.</p> <p> </p> <p>2.         The matter to be heard by the full Bench of the Constitutional Court.”</p> <p> </p> <p>            The facts of this matter are fairly simple and straightforward. They are virtually common cause. They are as follows.</p> <p> </p> <p>The respondent (the plaintiff in the court <em>a quo </em>and hereinafter referred to as “the plaintiff” for convenience) entered into a contract of storage with the applicant (the defendant in the court <em>a quo</em> and hereinafter referred to as “the defendant” for convenience), in terms of which she lodged her goods with the defendant. The agreement provided that the goods were to attract a monthly storage charge and that payment was to be made in advance. The agreement included as a material term of the contract that if the storage charges:</p> <p> </p> <p>“… remain unpaid for three consecutive months Glens (the applicant) reserved the right to sell part or all of the goods by Public Auction without notice to defray the accrued charges”.</p> <p> </p> <p>The plaintiff breached the above clause of the agreement. The defendant sold the goods by public auction. It used part of the proceeds to defray costs and kept the balance for collection by the plaintiff at her convenience.</p> <p> </p> <p>The plaintiff, aggrieved by this, approached the High Court for redress. The plaintiff claimed damages for the loss of her goods and damages for pain and suffering as a result of the defendant’s actions. The High Court found for the plaintiff and the defendant was ordered to pay damages in the sum of US$20 000, being the value of the plaintiff’s property, which the defendant had, according to the court <em>a quo</em>, “wrongfully and unlawfully” sold. The defendant was also ordered to pay damages for pain and suffering in the sum of US$1 500.</p> <p> </p> <p>            The defendant was dissatisfied with the judgment of the court <em>a quo </em>and appealed to the Supreme Court. As I have already stated, at the commencement of the hearing of the appeal the constitutionality of the <em>parate executie</em> clause was raised and the matter was referred to this Court for determination.</p> <p> </p> <p>            Before considering the constitutional issues referred to this Court, I wish to make the following observations on issues which were inadvertently left open by the Supreme Court. The issues are not constitutional issues. They therefore fall outside the jurisdiction of this Court.</p> <p> </p> <p>The defendant appealed against the judgment of the court <em>a quo</em> on the following grounds:</p> <p> </p> <p>“1.       The learned Judge <em>a quo</em> erred in holding that the Appellant was liable to compensate the Respondent for selling her property by Public Auction.</p> <p> </p> <p>2.         The learned Judge <em>a quo</em> misdirected himself on a point of law by finding that the <em>parate executie</em> did not apply in this matter when in fact the parties upon concluding the contract had agreed that it shall apply.</p> <p> </p> <p>3.         The learned Judge <em>a quo</em> erred in the exercise of his discretion in holding that the respondent was entitled to damages in the sum of US$20 000.00 in circumstances where the respondent had miserably failed to prove her claim.</p> <p> </p> <p>4.         The appellant will pray that the appeal be allowed with costs and that the judgment of the High Court be set aside and substituted in place thereof by an order that the respondent’s claim against the appellant be and hereby dismissed with costs, including costs of two (2) counsels where two (2) counsels are employed.”</p> <p> </p> <p>            The defendant’s argument in simple terms is that the plaintiff’s pleadings establish no cause of action, in that the claim for damages cannot be founded on a breach of contract. If anything, it was the plaintiff who was in breach of the contract, which led the defendant to enforce the contract and sell the goods by public auction in terms thereof. The defendant further contended that the plaintiff’s cause of action could not be founded in delict, as the pleadings did not set out the requirements for a delictual action. The defendant’s contention appears unassailable.</p> <p> </p> <p>Mr <em>Matinenga</em>, for the plaintiff, did not make any meaningful submissions to the contrary. He virtually conceded the point and predicated his case on the unconstitutionality of the <em>parate executie</em> clause in the contract.</p> <p> </p> <p>It is not for this Court to determine issues raised before the Supreme Court that are not constitutional. Those issues are for the Supreme Court to determine. The Supreme Court has the final word on those issues. Ideally the Supreme Court should have determined those issues and thereafter referred the issue of the constitutionality of <em>parate executie</em> to this Court if so persuaded.</p> <p> </p> <p>            I now turn to deal with the constitutional issues raised in this case.</p> <p> </p> <p>Mr <em>Matinenga</em>, as I have stated, rested his case on the illegality of <em>parate executie</em>. He submitted that this is a point of law which can be raised for the first time on appeal. In support of his case, Mr <em>Matinenga</em> made the following submissions in para 6 of his heads of argument:</p> <p> </p> <p>“6.       These heads of argument address the issue of <em>parate</em> execution in three stages.</p> <p> </p> <p>Firstly, it is argued that <em>parate</em> execution is not of general application. It is limited to a specific type of contract – a pledge. In this type of contract there is no dispute on the principal obligation between the creditor and (the) debtor.</p> <p> </p> <p>Secondly, and in the event that the court does not find favour with the above argument, it is argued that, on the facts, the respondent suffered prejudice and that <em>parate</em> execution was inappropriate.</p> <p> </p> <p>Thirdly, and lastly, it is argued that the concept of <em>parate</em> execution is outmoded and has no place in modern jurisprudence and does not pass the test of constitutionality in our law.”</p> <p> </p> <p>            Ms <em>Mahere</em>, for the defendant, submitted that the essence of the plaintiff’s contention is that <em>parate executie</em> is unconstitutional on the basis that it offends the “access to the courts” provision of the Constitution and that the plaintiff, in her heads of argument, made reference to both the former and the current Constitutions of Zimbabwe. She further submitted that the reference to the Constitution in the instant case is inapposite because at the time that the <em>parate executie</em> clause was carried into effect by the defendant, and at the time it was adjudicated upon, the Constitution had not come into effect.</p> <p> </p> <p>            The issues that arise from these contrary positions and which fall for determination are –</p> <p> </p> <p>(1)        Whether or not <em>parate executie</em> offended the “access to the courts” provision in the former Constitution of Zimbabwe (“the former Constitution), namely s 18(9), as read with s 16(7), of the former Constitution;</p> <p> </p> <p>(2)        Whether or not <em>parate executie</em> offends the “access to the courts” provision in the Constitution, namely s 69(3) of the Constitution; and</p> <p> </p> <p>(3)        If <em>parate executie</em> is compliant with the provisions of both the former Constitution and the Constitution, what is its extent and whether this Court, using its powers in terms of s 176 of the Constitution, should outlaw <em>parate executie</em> on the grounds that it has no place in modern jurisprudence, on the ground that it is against public policy.</p> <p> </p> <p><strong>IS <em>PARATE EXECUTIE</em> COMPLIANT WITH THE PROVISIONS OF THE FORMER CONSTITUTION, NAMELY S 18(9), AS READ WITH S 16(7)?</strong></p> <p> </p> <p>            The issue of whether or not <em>parate executie</em> complied with the former Constitution is not, as Ms <em>Mahere</em> correctly submitted, a new issue. The issue was raised in the case of <em>Nyamukusa</em> v <em>Agricultural Finance Corporation</em> SC 174/94. The facts of the<em> Nyamukusa</em> case <em>supra</em> are that the appellant’s farm had been seized and sold because the appellant had failed to repay a loan. The respondent in the matter acted pursuant to a contractual clause, which read as follows:</p> <p> </p> <p>“Should the borrower commit or be in breach of any of the terms and conditions of this agreement the Corporation specifically stipulates, as provided in section 40 of the Act, that it shall have the right in terms of that section of the Act, after demand by registered letter addressed to the borrower at his last known address or to the address given by him in his application for this loan, and without recourse to a court of law, to enter upon the property hypothecated and to take possession thereof and sell and dispose of the same in whole or in part as the Corporation may determine always in terms of and subject to the provisions of the Act.”</p> <p> </p> <p>The appellant in that matter challenged the above clause on the basis that it offended the provisions of s 18(9) of the former Constitution. The court held that the <em>parate executie</em> clause in <em>Nyamukusa’s</em> case <em>supra</em> was lawful and permissible in terms of s 18(9), as read with s 16(7), of the former Constitution.</p> <p> </p> <p>            The plaintiff <em>in casu</em>, as in<em> Nyamukusa’s</em> case <em>supra</em>, seeks to rely on the “access to the courts” provision set out in s 18(9) of the former Constitution, which provided:</p> <p> </p> <p>“<strong>18 Provisions to secure protection of law</strong></p> <p> </p> <p>(9) Subject to the provisions of this Constitution, every person is entitled to be afforded a fair hearing within a reasonable time by an independent and impartial court or other adjudicating authority established by law in the determination of the existence or extent of his civil rights or obligations.”</p> <p> </p> <p>The import of the words “subject to” is to render this access to the courts provision subservient to other provisions of the former Constitution.</p> <p> </p> <p>In <em>S</em> v <em>Pillay</em> 1995 (2) ZLR 313 (H) at 315H Chatikobo J interpreted the meaning of the phrase “subject to” in the following manner:</p> <p> </p> <p>“The phrase ‘subject to’ has been interpreted to mean ‘except as curtailed by’.”</p> <p> </p> <p>See also <em>Commissioner of Police v Wilson</em> 1981 ZLR 451.</p> <p> </p> <p>            It follows therefore, as Ms <em>Mahere</em> correctly submitted, that the “access to the courts” provision set out in s 18(9) of the former Constitution is applicable except as curtailed by other provisions of that Constitution. In the former Constitution, s 16(7) curtailed s 18(9) in the following terms:</p> <p> </p> <p><strong>“16 Protection from deprivation of property</strong></p> <p> </p> <p>(7) Nothing contained in or done under the authority of any law shall be held to be in contravention of subsection (1) to the extent that the law in question makes provision for the acquisition of any property or any interest or right therein in any of the following cases —</p> <p> </p> <p>(<em>a</em>) - (<em>c</em>) …</p> <p> </p> <p>(<em>d</em>)        as an incident of a contract, including a lease or mortgage, which has been agreed between the parties to the contract, or of a title deed to land fixed at the time of the grant or transfer thereof or at any other time with the consent of the owner of the land; …</p> <p> </p> <p>except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.”</p> <p> </p> <p> </p> <p>Thus, quite clearly, <em>parate executie</em> was permissible in terms of s 16(7) of the former Constitution.</p> <p> </p> <p>It is apparent, therefore, that the “access to the courts” provision enshrined in s 18(9) of the former Constitution applies, except as curtailed by s 16(7) of the former Constitution which sanctions <em>parate executie</em>.</p> <p> </p> <p>            In the result, I am satisfied that the “access to the courts” provision enshrined in s 18(9) of the former Constitution applies, except as curtailed by s 16(7) of the former Constitution which sanctions <em>parate executie</em>. The former Constitution did not outlaw <em>parate executie per se</em>. It was lawful to the extent allowed by s 16(7) of the former Constitution, which exception covered the facts of this case.</p> <p> </p> <p><strong>DOES SECTION 69(3) OF THE CONSTITUTION RENDER UNCONSTITUTIONAL <em>PARATE EXECUTIE</em>?</strong></p> <p> </p> <p>            The issue of whether s 69(3) of the Constitution renders <em>parate executie</em> unconstitutional, of necessity raises the issue of whether or not s 69(3) of the Constitution has retroactive effect and applies to the clause of <em>parate executie</em> that was entered into, executed and adjudicated upon by the High Court before the Constitution came into operation. Put differently, does s 69(3) of the Constitution have retroactive effect?</p> <p> </p> <p>            I have no doubt in my mind that s 69(3) of the Constitution has no retroactive effect.</p> <p> </p> <p>In common law countries, one of the fundamental rules of construction of Statutes is the presumption against retrospectivity. The right of access to courts or other lawful tribunals for the resolution of disputes is a substantive right and can only apply retrospectively where the legislation in question clearly provides for such a construction.</p> <p> </p> <ul> <li> </li> </ul> <p> </p> <p>“… the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law.”</p> <p> </p> <p>These authorities are in line with the maxim <em>lex prospicit non respicit</em> (law looks forward and not back). The rationale for this presumption under the common law is that new legislation must not be used to limit the enjoyment of fruits of legal agreements entered into on the basis of an existing law. To allow statutes to be interpreted and applied retrospectively would be tantamount to second-guessing contracts entered into in good faith between two agreeing parties. Therefore, whenever there is a substantive statute which seeks to limit the rights that parties already have under a concluded contract, the presumption should be applied in order to safeguard the legitimate interests of contracting parties unless this is impossible, regard being had to the language used in the legislation. In this regard Gubbay CJ had this to say in the case of <em>Nkomo and Anor</em> v <em>Attorney-General and Others</em> 1993 (2) ZLR 422 (S) at 428H-429C:</p> <p>“It is a cardinal rule in our law, dating probably from <em>Codex 1:14:7</em>, that there is a strong presumption against a retrospective construction. See <em>Agere</em> v <em>Nyambuya</em> 1985 (2) ZLR 336 (S) at 338G-339G. Even where a statutory provision is expressly stated to be retrospective in its operation, it is not to be treated as in any way affecting acts and transactions which have already been completed, or which stand to be completed shortly, or in respect of which action is pending or has been instituted but not yet decided, unless such a construction appears clearly from the language used or arises by necessary implication. See <em>Bell</em> v <em>Voorsitter van die Rasklassifikasieraad en Andere</em> 1968 (2) SA 678 (A) at 684E-F; …” .</p> <p> </p> <p>In England the presumption against retrospective application of substantive law enjoys an almost hegemonic position in the <em>corpus</em> of the law. In <em>In Re Athlumney</em> [1898] 2 QB 547 at 551 (as quoted from Bell and Engle (eds) <em>Cross on Statutory Interpretation</em> 2 ed (1987)) R S Wright J explained the law in the following words:</p> <p>“Perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter(s) of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.”</p> <p> </p> <p>Similarly, the Canadian approach with regard to the presumption against retrospective construction and application of the law is summarised as follows by Professor P W Hogg in <em>Constitutional Law of Canada</em> 3 ed (1992) at para 33.10 as follows:</p> <p> </p> <p>“Section 58 of the Constitution Act, 1982 provides that the Act is to come into force on a day to be fixed by proclamation. That proclamation was issued by the Queen, who came to Canada for the purpose, at a ceremony in Ottawa on April 17, 1982; and the proclamation fixed April 17, 1982 as the day upon which the Constitution Act, 1982 was to come into force. The Charter of Rights accordingly came into force on that day, and operates only prospectively from that day. A statute (or regulation or by-law or other legislative instrument) which was enacted before April 17, 1982, and which is inconsistent with the Charter, will be rendered ‘of no force or effect’ by the supremacy clause of the Constitution, but only as from April 17, 1982. Action of an executive or administrative kind, such as search, seizure, arrest or detention, which was taken before April 17, 1982, cannot be a violation of the Charter, because the Charter was not in force at the time of the action.”</p> <p> </p> <p> </p> <p>The same proposition was stated in <em>R v James</em><em>; R v Dzagic</em> (1988) 33 CRR 107 at 131-2, wherein Tarnopolsky JA opined:</p> <p> </p> <p>“It is not an effective way to promote respect for Charter rights to apply new effects to actions taken before the Charter came into effect … it is important that actions be determined by the law, including the Constitution, in effect at the time of the action.”</p> <p> </p> <p>In <em>Society for the Propagation of the Gospel</em> v <em>Wheeler</em> 2 Gall. 105 at 139 (Cir. 1814) it was held:</p> <p>‘Upon principle, every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective …”.</p> <p> </p> <p>In my view, the presumption against retrospectivity is a necessary safeguard against the interference with legally obtained rights <em>ex post facto.</em> This stems from the belief that at some point the State, the parties and third parties are entitled to rely on a common understanding of the nature of the rights acquired or transactions completed. See <em>Du Toit</em> v <em>Minister for Safety and Security and Anor</em> [2009] ZACC 22; 2010 SACR 1 (CC); 2009 (12) BCLR 1171 (CC) per Langa CJ at para 36. The question which inevitably follows is whether s 69(3) of the Constitution takes away or impairs vested rights acquired under existing laws, or creates new obligations, imposes a new duty or attaches a new disability in respect of already completed transactions.</p> <p>           </p> <p>On the authority of the above cited cases and the wording of s 69(3) of the Constitution, s 69(3) must be presumed to have no retrospective effect. Section 69(3) provides as follows:</p> <p> </p> <p>“<strong>69 Right to a fair hearing</strong></p> <p> </p> <p>(3) Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute.”</p> <p> </p> <p>There is nothing in the language of s 69(3) of the Constitution which suggests that it is to be applied retrospectively, thus overriding the presumption.</p> <p> </p> <p>            Since s 69(3) of the Constitution is not retroactive, it does not apply to the contract between the defendant and the plaintiff, which was concluded before the Constitution came into operation. Therefore the constitutional issue is determined in favour of the defendant.</p> <p> </p> <p><strong>SHOULD THIS COURT OUTLAW <em>PARATE EXECUTIE</em> ON THE GROUNDS OF PUBLIC POLICY?</strong></p> <p> </p> <p>            Finally, Mr <em>Matinenga</em> submitted that <em>parate executie</em> should be abolished as part of our common law on the grounds that it offends public policy. I am not persuaded by this argument for the following reasons.</p> <p> </p> <p>            Mr <em>Matinenga</em> submitted that this court should reconsider the cases of <em>Aitken </em>v <em>Miller</em> 1950 SR 227; 1951 (1) SA 153 (SR) and <em>Changa</em> v <em>Standard Finance Ltd</em> 1990 (2) ZLR 412 (SC), which cases are to the effect that <em>parate executie</em> is both lawful and constitutional.</p> <p> </p> <p>            Mr <em>Matinenga</em> urged the court to follow the approach adopted by South African courts in the cases of <em>Chief Lesapo</em> v <em>North West Agricultural Bank and Anor</em> 2000 (1) SA 409 (CC) and <em>Findevco (Pty) Ltd</em> v <em>Faceformat SA (Pty) Ltd</em> 2001 (1) SA 251 (NPD), in which cases <em>parate executie</em> was held to be both unlawful and unconstitutional.</p> <p> </p> <p>            In <em>Chief Lesapo v North West Agricultural Bank supra</em> the Constitutional Court of South Africa had this to say at p 416C:</p> <p> </p> <p>“The judicial process, guaranteed by s 34, also protects the attachment and sale of a debtor’s property, even where there is no dispute concerning the underlying obligation of the debtor on the strength of which the attachment and execution takes place. That protection extends to the circumstances in which property may be seized and sold in execution and includes the control that is exercised over sales in execution.”</p> <p> </p> <p>Thus, <em>Chief Lesapo’s</em> case <em>supra</em> is authority for the proposition that <em>parate executie</em> is not only unlawful but unconstitutional, in that it violated the access to courts right guaranteed by s 34 of the South African Constitution.</p> <p> </p> <p>            <em>Chief Lesapo’s</em> case <em>supra</em> was followed in <em>Findevco’s</em> case <em>supra</em>, where froneman j had this to say at 256E-G:</p> <p> </p> <p>            “If legislation which allows the attachment and sale of movable goods given as security without recourse to courts is unconstitutional, even where there is no dispute about the debtor’s indebtedness, why should the common law allow it? I can see no valid reason why it should. Section 39(2) of the Constitution applies to the interpretation of both legislation and the common law. The leading case for upholding the validity of <em>parate executie</em> clauses in respect of movables is <em>Osry v Hirsch, Loubser &amp; Co Ltd</em> 1922 CPD 531. In that case the rule against self-help was considered unimportant (at 541, but compare <em>Iscor Housing Utility Co and Anor v Chief Registrar of Deeds and Anor </em>1971 (1) SA 613 (T) at 616H). <em>Lesapo’s</em> case <em>supra</em> tells us that the rule is of fundamental importance to our Constitution. I consider myself bound by the <em>ratio</em> of <em>Lesapo’s</em> case <em>supra</em> in the present matter.”</p> <p> </p> <p>            The above South African cases were interpreting s 34 of the South African Constitution, which provides as follows:</p> <p> </p> <p>“<strong>Access to courts</strong></p> <p> </p> <p>34.       Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”</p> <p> </p> <p>A comparison of s 34 of the South African Constitution and s 18(9), as read with s 16(7), of the former Constitution reveals that the two provisions are very different. The South African provision is much wider than the provisions of the former Constitution. Thus, in terms of the former Constitution, <em>parate executie</em> was expressly permitted. Accordingly, the above cited South African cases are of no assistance when interpreting s 18(9), as read with s 16(7) of the former Constitution.</p> <p> </p> <p>             I accept, however, that s 34 of the South African Constitution is very similar to s 69(2) and (3) of the Constitution, although not couched in exactly the same terms. They are of the same purport. I also accept that the cases of <em>Chief Lesapo</em> <em>supra </em>and <em>Findevco supra</em> were interpreting s 34 of the South African Constitution and are authorities for the proposition that <em>parate executie</em> is unconstitutional in terms of s 34 of the South African Constitution.</p> <p> </p> <p>            However, these two cases have not been followed in a number of other South African cases. In some instances it was held that they were wrongly decided.</p> <p> </p> <p>In <em>Bock</em> v <em>Duburoro Investments (Pty) Ltd</em> 2004 (2) SA 242 (SCA) HARMS JA was led to state the following in relation to the constitutionality of <em>parate executie</em> clauses:</p> <p> </p> <p>“… I find it difficult to extend the prescription of these statutory provisions by the Constitutional Court to <em>parate executie</em> of movables which are lawfully in the possession of the creditor. … since the debtor may seek the protection of the court if, on any just ground, he can show that, in carrying out the agreement and effecting a sale, the creditor acted in a manner which prejudiced him in his rights, the creditor cannot be said to be the judge in his own cause.”</p> <p> </p> <p>In that case the court came to the conclusion that the judgment in the <em>Findevco</em> case <em>supra</em> finding that the law relating to <em>parate executie</em> of movables is unconstitutional was wrong.</p> <p> </p> <p>            Similarly, in <em>Juglal</em> v <em>Shoprite Checkers (Pty) Ltd</em> 2004 (5) SA 248 (SCA) the Supreme Court of Appeal upheld the validity of a notarial covering bond which entitled the creditor, in the event of default on the part of the debtor, to take possession of the debtor’s business and assets as security for the debt, to sell the assets and to apply the proceeds in settlement of the debt as <em>parate executie</em>. The court <em>a quo</em> had granted an order perfecting its security. The judge had expressly declined to follow the <em>Findevco</em> case <em>supra</em>. HEHER J commented at para 9 of his judgment that the refusal was justified by the decision in <em>Bock supra</em>. He also declared in para 11 of his judgment that the common law in relation to <em>parate executie</em> does not limit the right of access to the courts, “nor does it fall short of the spirit, purpose or the object of the Bill of Rights”.</p> <p> </p> <p>            Again, in <em>SA Bank of Athens Ltd v May van Zyl</em> [2006] 1 All SA 118 (SCA) the learned judge held at p 11 of the cyclostyled judgment that:</p> <p> </p> <p>“I am, however, unpersuaded that <em>parate</em> execution is <em>per se</em> unconstitutional or offensive to public policy.”</p> <p> </p> <p>            Thus, in South Africa the cases of <em>Chief Lesapo </em>and <em>Findevco supra</em> have not been followed in a number of cases.</p> <p> </p> <p>Section 69 of the Constitution provides as follows:</p> <p> </p> <p><strong>“69  Right to a fair hearing</strong></p> <p> </p> <p>(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.</p> <p> </p> <p>(2) In the determination of civil rights and obligations, every person has a right to a fair, speedy and public hearing within a reasonable time before an independent and impartial court, tribunal or other forum established by law.</p> <p> </p> <p>(3) Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute.</p> <p> </p> <p>(4) Every person has a right, at their own expense, to choose and be represented by a legal practitioner before any court, tribunal or forum.”</p> <p> </p> <p>As I have already stated, this provision, although worded differently, bears the same import as s 34 of the South African Constitution. I see nothing in the wording of both these provisions which explicitly or by necessary implication renders <em>parate </em>executie unconstitutional.</p> <p> </p> <p>A party that is aggrieved by the manner in which <em>parate executie</em> has been carried out by the creditor has the right to approach the courts to complain about the manner in which he/she has been prejudiced by the application of <em>parate executie</em>. The debtor’s right of access to the courts remains intact and he is free to exercise it.</p> <p> </p> <p>This approach was highlighted in the case of <em>Osry v Hirsch, Loubser &amp; Co Ltd</em> 1922 CPD 531 at 547 where it is stated:</p> <p> </p> <p>“It is, however, open to the debtor to seek the protection of the court if, upon any just ground, he can show that, in carrying out the agreement and effecting a sale, the creditor has acted in a manner which has prejudiced him in his rights.”</p> <p> </p> <p>Similarly, in the case of <em>Changa supra</em> the court held:</p> <p> </p> <p>“An agreement for the delivery of movables by a debtor to a creditor and their sale by the latter by means of <em>parate</em> execution is valid and binding subject to the qualification that the creditor is not entitled to act in a manner so as to prejudice the debtor in his rights.”</p> <p> </p> <p> </p> <p>            In <em>Nyamukusa supra</em> this court adopted the same approach and concluded that <em>parate executie</em> was both constitutional and lawful.</p> <p> </p> <p>            I respectfully associate myself with the authorities that have held that <em>parate</em> <em>executie</em> is not only lawful but constitutional for the simple reason that the debtor’s right of access to the courts is not taken away by <em>parate executie</em>. The debtor has unlimited access to the courts to complain about the manner in which the creditor has performed the contract. To allow the debtor to escape liability freely and openly undertaken on the basis of <em>parate executie</em> smacks of duplicity and strikes at the heart of the time honoured principle of the sanctity of the freedom to contract. The courts should respect the parties’ freedom to contract and not seek to rewrite contracts for the parties.</p> <p> </p> <p>            In the result, it is declared that <em>parate executie</em> is part of our common law and that it does not contravene s 69(3) of the Constitution as being contrary to public policy in the context of the right of access to the courts.</p> <p> </p> <p>            There shall be no order as to costs.</p> <p> </p> <p> </p> <p><strong>MALABA DCJ:   I agree</strong></p> <p><strong>ZIYAMBI JCC:   I agree</strong></p> <p><strong>GWAUNZA JCC:   I agree</strong></p> <p><strong>GARWE JCC:   I agree</strong></p> <p><strong>GOWORA JCC:   I agree</strong></p> <p><strong>HLATSHWAYO JCC:   I agree</strong></p> <p><strong>PATEL JCC:   I agree</strong></p> <p><strong>GUVAVA JCC:   I agree</strong></p> <p><em>Mtetwa &amp; Nyambirai</em>, applicant’s/appellant’s legal practitioners</p> <p><em>Goneso &amp; Associates</em>, respondent’s 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/2014/6/2017-zwcc-6.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=47767">2017-zwcc-6.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/2014/6/2017-zwcc-6.pdf" type="application/pdf; length=250369">2017-zwcc-6.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/constitutional-law">CONSTITUTIONAL LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/constitution-zimbabwe-1980">Constitution of Zimbabwe 1980</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fundamental-rights">Fundamental rights</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-justice">Administrative justice</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/right-property">Right to property</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/courts-constitutional-practice">Courts (Constitutional practice)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/sale-execution">sale (Execution)</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></div> Tue, 10 Jul 2018 07:40:33 +0000 admin 8960 at https://old.zimlii.org