REPORTABLE (22)

Judgment No. SC 16/06

Constitutional Application No. 350/05

LAW SOCIETY OF ZIMBABWE v

(1) MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS

(2) ATTORNEY-GENERAL OF ZIMBABWE

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, CHEDA JA, ZIYAMBI JA, MALABA JA & GWAUNZA  JA

HARARE, MARCH 27 & JULY 11, 2006

S Moyo, for the applicant

N Mutsonziwa, for the respondents

CHIDYAUSIKU CJ: This application is made in terms of s 24 of the Constitution of Zimbabwe, the relevant part of which provides as follows:

“24 Enforcement of protective provisions

(1) If any person alleges that the Declaration of Rights has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may, subject to the provisions of subsection (3), apply to the Supreme Court for redress.”

The application impugnes certain sections of the Criminal Procedure and Evidence Act [Cap. 9:07] (“the Act”).

The applicant is the Law Society of Zimbabwe, a statutory body incorporated in terms of the Legal Practitioners Act [Cap. 27:04]. The first respondent is the Minister of Justice, Legal and Parliamentary Affairs, who is being cited in his official capacity as the Minister responsible for the administration of the Act, the constitutionality of some of whose provisions are being impugned in this application. The second respondent is the Intervener, cited in terms of s 24(6) of the Constitution.

A preliminary point has been taken that the applicant lacks the locus standi in judicio to bring this application.

The applicant, in the founding affidavit filed on its behalf, avers that it is the largest organisation representing the interests of all legal practitioners in Zimbabwe. It represents the views of the legal profession in Zimbabwe and maintains the integrity and the status of the legal profession. The applicant avers that it has a duty to consider and deal with all matters affecting the professional interests of the legal profession. The applicant contends that the primary purpose of the legal profession is to protect the public against the undue administration of justice and to ensure that no person may be harmed in his person, property and fundamental rights except in accordance with a law duly enacted and in compliance with fundamental human rights. It is also the applicant’s case that when the legal profession ceases to be effective in protecting the interests of the public in the due administration of justice and in ensuring that no person is harmed as aforesaid except in accordance with a law which complies with fundamental human rights, it loses its status as public protector and custodian of the law, the due administration of justice and the rule of law.

The applicant avers that it has received numerous complaints and representations from its members, urging it to challenge certain statutory provisions which have a negative effect on their effectiveness in representing and protecting members of the public and in ensuring the due administration of justice, and in particular to mount a constitutional challenge to certain sections of the Criminal Procedure and Evidence Amendment Act, No. 14 of 2004.

It is clear from the foregoing that the applicant founds its locus standi in judicio on its status as the public defender or protector of the rule of law and human rights. There is no averment that the impugned provision has violated the right of the applicant, or of a member of the applicant. The impugned provisions, sections 32 (3a)-(3d) and 34 (4)-(6) of the Act, provide as follows:

“32 (3a) Where the person arrested without warrant is charged with any offence referred to in paragraph 10 of the Third Schedule and the judge or magistrate before whom the person is brought in terms of this section is satisfied that there is a reasonable suspicion that the person committed the offence, the judge or magistrate shall order that person’s further detention or issue a warrant for his or her further detention for a period of twenty-one days.

(3b) Where the person arrested without warrant is charged with any offence referred to in the Ninth Schedule and there is produced to the judge or magistrate before whom the person is brought in terms of this section –

(a) a certificate issued by or on behalf of the Attorney-General stating that, in the Attorney-General’s opinion –

(i) the offence in question involves significant prejudice or significant potential prejudice to the economy or other national interest of Zimbabwe; and

(ii) the further detention of the person arrested for a period of up to twenty-one days is necessary for any one or more of the following reasons –

A. the complexity of the case;

B. the difficulty of obtaining evidence relating to the offence in question;

C. the likelihood that the person arrested will conceal or destroy the evidence relating to the offence in question or interfere with the investigation of the offence or both;

and

(b) the following, where the arrest is made in the circumstances referred to in paragraph (b) of subsection (1) of section twenty-five –

(i) proof that the arresting officer was an officer of or above the rank of assistant inspector at the time of the arrest, or that the arresting officer made the arrest with the prior leave of such an officer; and

(ii) where the alleged offence was disclosed through an anonymous complaint, a copy of the complaint as recorded in accordance with subparagraph (ii) of the proviso to paragraph (b) of subsection (1) of section twenty-five;

the judge or the magistrate shall, if satisfied that there is a reasonable suspicion that the person committed the offence, order that person’s detention or issue a warrant for his or her further detention for a period of twenty-one days or the lesser period specified in the certificate.

(3c) A person referred to in subsection (3a) or (3b) shall, unless the charge or charges against him or her are earlier withdrawn, remain in detention for twenty-one days or the lesser period specified in a certificate mentioned in subsection (3b), as the case may be, from the date when an order or warrant for the person’s further detention was issued in terms of the relevant subsection, and no court shall admit such person to bail during that period.

(3d) A person referred to in subsection (3a) or (3b) may continue to be detained after the expiry of the period referred to in subsection (3c) pending the outcome of investigations into the charge or charges against him or her (without prejudice to the person’s right to apply for bail) an order or warrant for that person’s further detention is obtained from a judge or magistrate in terms of section thirty-three within forty-eight hours of the expiry of the period referred to in subsection (3c). …

34 (4) If a person is arrested by virtue of a warrant is charged with any offence referred to in –

(a) paragraph 10 of the Third Schedule, and the judicial officer before whom the person is brought in terms of this section is satisfied that there is a reasonable suspicion that the person committed the offence, the judicial officer shall order that person’s continued detention for a period of twenty-one days; or

(b) the Ninth Schedule and there is produced to the judicial officer before whom the person is brought in terms of this section a certificate issued by or on behalf of the Attorney-General in the same terms as those specified in subsection (3b) of section thirty-two, the judicial officer shall, if satisfied that there is a reasonable suspicion that the person committed the offence, order that person’s continued detention for a period of twenty-one days or the lesser period specified in the Attorney-General’s certificate.

(5) A person referred to in subsection (4), shall, unless the charge or charges against him or her are earlier withdrawn, remain in detention for twenty-one days or the lesser period specified in a certificate mentioned in paragraph (b) of subsection (4), as the case may be, from the date when an order for the person’s further detention was issued in terms of that subsection, and no court shall admit such person to bail during that period.

(6) A person referred to in subsection (4) may continue to be detained after the expiry of the period referred to in subsection (5) pending the outcome of investigations into the charge or charges against him or her (without prejudice to the person’s right to apply for bail) an order or warrant for that person’s further detention is obtained from a judge or magistrate within forty-eight hours of the expiry of the period referred to in subsection (5).”

There is no doubt that the above provisions are a derogation of the individual’s right to liberty and possibly his right to a fair trial, guaranteed by the Constitution. The substantial issue on the merits is whether or not the derogation is permissible in terms of the Constitution.

The respondents, as already stated, challenge the locus standi in judicio of the applicant to bring this application in terms of s 24 of the Constitution. At the commencement of the hearing, the Court directed that it be addressed on the point in limine, which it wished to determine before considering the merits of the application.

As I have already stated, there is no allegation that the applicant’s, or any of its members’, fundamental right has been or is likely to be violated. The applicant’s contention is that the impugned provisions violate the public’s right of liberty and entitlement to a presumption of innocence as guaranteed by ss 13 and 18 of the Constitution, respectively. The applicant contends that, as an organisation representing the legal profession, it has the duty to protect the public from unconstitutional provisions of any law, and thus has locus standi in judicio to bring this application.

This Court has had occasion to consider and determine the issue of locus standi in judicio of an applicant in terms of s 24 of the Constitution. The following are some of the cases in which the issue of the locus standi in judicio of an applicant in terms of s 24 of the Constitution was considered and determined.

A. IN RE WOOD AND ANOR 1994 (2) ZLR 155 (S)

The facts in Wood’s case are that the immigration authorities of Zimbabwe had refused residence permits to Mrs Wood and Mrs Hansard and caused them to be prosecuted for remaining in Zimbabwe without permits to do so. At their trial before the magistrate’s court, the accused women raised the question of whether they had a constitutional right to remain in Zimbabwe. The magistrate referred the matter to the Supreme Court in terms of s 24(2) of the Constitution.

The two women claimed that they were entitled to reside permanently in Zimbabwe. They maintained that they had this right by virtue of the protection of freedom of movement afforded under s 22(1) of the Constitution. Mrs Wood, though not a Zimbabwean citizen, had a minor child who was a Zimbabwean citizen by birth. She argued that s 22(1) of the Constitution afforded her the right to reside permanently with her minor child in Zimbabwe. If she was forced to leave Zimbabwe with her son, his constitutional right as a citizen would be infringed and therefore she had some sort of collateral right to remain permanently in Zimbabwe with her son. Mrs Hansard, who was also an alien, was married to a man who, though not a Zimbabwe citizen, had permanent residence status in Zimbabwe. She had been separated from him, but returned to Zimbabwe and claimed to have been reconciled with him. She argued that s 22(1) of the Constitution afforded her a right to reside permanently in Zimbabwe with her husband.

The Court held that only citizens and permanent residents had a constitutional right to remain permanently in Zimbabwe. Neither of the two women had such a constitutional right to reside permanently in Zimbabwe and therefore they had no basis for arguing that their freedom of movement was being unlawfully interfered with by the immigration authorities. The Court also held that the persons who might be entitled to claim that their constitutional rights to freedom of movement were being infringed by the expulsion from Zimbabwe of these two women were Mrs Wood’s minor child and Mrs Hansard’s husband. Mrs Wood’s child might claim that his right to reside in Zimbabwe would be infringed by the expulsion of his mother, as he would be forced to accompany her in order to avoid separation from his mother and that this would interfere with his freedom of movement. Similarly, the Court concluded that if there had in fact been a reconciliation between Mr and Mrs Hansard, Mr Hansard might argue that his freedom of movement would be interfered with by the expulsion of his wife from Zimbabwe because he would be obliged to accompany her and establish a matrimonial home outside Zimbabwe in order to maintain the marital relationship.

In dismissing the application GUBBAY CJ at pp 159E-160D made the following pertinent remarks:

“Similarly, in Rattigan and Ors v Chief Immigration Officer and Ors 1994 (2) ZLR 56 it was the three wives who, as citizens of Zimbabwe, proclaimed their rights under s 22(1) and not the alien husbands. It was held that to disable the latter from living with their wives in Zimbabwe in a matrimonial regime in effect undermined and devalued the protection of freedom of movement in each wife as a member of a family unit.

In the present matter, as Mr Colegrave so fairly and graphically put it, Mrs Wood is seeking to assert a right to reside in Zimbabwe by hanging onto Martin’s coat-tails. Her claim, which she acknowledges she does not otherwise possess, is to some form of collateral right to the protection afforded a citizen or permanent resident under s 22(1). Such a stance, in my view, is quite untenable.

Under subs (1) of s 24 of the Constitution, and by inevitable implication under subs (2) as well, the applicant or party to the proceedings, save only in relation to a detained person, must be able to allege that a provision of the Declaration of Rights has been, is being, or is likely to be, contravened in respect of him. He must, therefore, sue only for the acts or threats to himself. Yet Mrs Wood does not assert, nor could she, that a constitutional right afforded her is being contravened by the decision to refuse the grant of a residence permit. Plainly it is not her freedom of movement that is being unlawfully interfered with by the action of the Immigration authorities.” (the underlining is mine)

For the above proposition the learned CHIEF JUSTICE relied on the case of Rattigan and Ors v Chief Immigration Officer and Ors 1994 (2) ZLR 54 (S).

Wood’s case supra, in my view, is clear authority for the proposition that violation of a constitutional right cannot be founded on a collateral basis. The violation has to be in relation to the applicant himself, herself or itself. It stands to reason that locus standi in judicio in terms of s 24 of the Constitution cannot be founded on a collateral basis.

The present applicant’s locus standi in judicio is founded on a collateral basis. Wood’s case supra is clearly against the applicant in this regard.

B. RUWODO N.O. v MINISTER OF HOME AFFAIRS AND ORS 1995 (1) ZLR 227 (S)

The applicant in that case alleged on behalf of her minor child that the minor child’s fundamental right of freedom of movement, guaranteed in terms of s 22(1) of the Constitution, was violated or was likely to be violated by an immigration order deporting the applicant from Zimbabwe. The application was dismissed on the basis that a minor child’s right of freedom of movement was not absolute but subject to parental authority, which authority entitled the parent to determine the child’s residence.

Although the issue of locus standi in judicio was not specifically raised in that case, it is quite clear from the judgment that the Court did not recognise Mrs Ruwodo’s right to make the application on her own behalf, acquired through her relationship to the minor child.

C. RETROFIT (PVT) LTD v PTC AND ANOR 1995 (2) ZLR 199 (S)

In Retrofit supra the locus standi in judicio of the applicant was in issue. GUBBAY CJ, who delivered the judgment of the Court said at pp 207G-208E:

“The contention advanced on behalf of the Corporation was that s 24(1) affords the applicant no locus standi in judicio to seek redress for a contravention of the Declaration of Rights other than in relation to itself (the exception being where a person is detained). It has no right to do so either on behalf of the general public or anyone else. Put otherwise, a constitutional right that invalidates a law may be invoked by a person affected by the law only if that person is also entitled to the benefit of the constitutional right. If not so entitled, then that person will be precluded from impugning the law. See Hans Muller v Superintendent Presidency Jail, Calcutta 1955 AIR 367 (Supreme Court of India). The exception is where a person is the accused in a prosecution for breach of the law. See Hogg Constitutional Law of Canada 3 ed at p 1274. I have no difficulty in accepting this proposition.

It is plain, to my mind, that the primary purpose in the bringing of this application was not deep-felt anxiety over hindrance in the enjoyment of freedom of expression, caused by the prevailing serious shortcomings in the wireline telephone service and the absence of a mobile cellular telephone service. It was yet another legal attempt to secure a licence to operate a mobile cellular telephone service in Zimbabwe. Commercial self-interest and advantage, not so much the desire to vindicate the right to freedom of expression, was, and is, the main motivation behind the application.

But is this a factor of any relevance? The decision in In re Wood and Anor 1994 (2) ZLR 155 (S); 1995 (2) SA 191 (ZS) at 195 G-I; 1995 (1) BCLR 43 (ZS) at 46I-47B, cited in support of the applicant’s lack of standing, concerned a totally different situation. In that case the right to reside in any part of Zimbabwe, as guaranteed by s 22(1) of the Declaration of Rights, vested in the minor child of Mrs Wood and not in her. No constitutional right afforded her was infringed by the refusal of the immigration authorities to grant her a residence permit. See also Ruwodo NO v Minister of Home Affairs and Ors 1995 (1) ZLR 227 (S); 1995 (7) BCLR 903 (ZS).” (the underlining is mine)

The Retrofit case supra is clear authority for the proposition that a litigant in a s 24 application has no locus standi in judicio to seek redress for a contravention of the Declaration of Rights other than for himself, herself or itself; the exception being where the person is in custody.

Retrofit (Pvt) Ltd (“Retrofit”) was held to have locus standi on the basis that the Corporation’s monopoly impugned on the freedom of expression of Retrofit because it hindered everyone, including Retrofit, from receiving information without interference. Accordingly, Retrofit could make the application in its own right, as it was its right to receive information that was being infringed.

D. UNITED PARTIES v MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS AND ORS 1997 (2) ZLR 254 (S)

This Court held that a political party had no locus standi in judicio to challenge the provisions of the Electoral Act which it alleged contravened the right to freedom of expression of voters who might vote for the applicant, such right being protected by s 20 of the Constitution. In dismissing the application GUBBAY CJ had this to say at p 258 B-E:

“Thus, s 24(1) affords the applicant locus standi in judicio to seek redress for a contravention of the Declaration of Rights only in relation to itself (the exception being where a person is detained). It has no right to do so either on behalf of the general public or anyone else. The applicant must be able to show a likelihood of itself being affected by the law impugned before it can invoke a constitutional right to invalidate that law. See Retrofit (Pvt) Ltd v Posts and Telecommunications Corporation and Anor 1995 (2) ZLR 199 (S) at 207H-208A; 1995 (9) BCLR 1262 (ZS) at 1269 E-G; 1996 (1) SA 847 (ZS) at 854 D-F.

So it was in In re Wood and Anor 1994 (2) ZLR 155 (S) at 159F-160B; 1995 (1) BCLR 43 (ZS) at 46H-47B; 1995 (2) SA 191 (ZS) at 195 G-I, that this Court held that the right to reside in any part of Zimbabwe, as guaranteed by s 22(1) of the Declaration of Rights, vested in the minor child of Mrs Wood and not in her. No constitutional right in relation to her was violated by the refusal of the immigration authorities to grant her a residence permit. See also Ruwodo NO v Minister of Home Affairs and Ors 1995 (1) ZLR 227 (S); 1995 (7) BCLR 903 (ZS).” (the underlining is mine)

Thus, this Court in the United Parties case supra reiterated that locus standi in judicio in terms of s 24 of the Constitution is only available to an applicant in respect of whom there has been or is likely to be a contravention of the Declaration of Rights of the applicant.

E. CATHOLIC COMMISSION FOR JUSTICE AND PEACE IN ZIMBABWE v ATTORNEY-GENERAL AND ORS 1993 (1) ZLR 242 (S)

The Catholic Commission brought an application in terms of s 24 of the Constitution to prevent the execution of certain prisoners who were in custody. Initially, the locus standi in judicio of the Catholic Commission was challenged, but the challenge was subsequently withdrawn. Commenting on the issue of locus standi in judicio McNALLY JA made the following observation at 250:

“Although the locus standi of the applicant to bring this application was initially objected to in an affidavit on behalf of the respondents, the contention was not pressed at the hearing, and correctly so.

The applicant is a human rights organisation whose avowed objects are to uphold basic human rights including the most fundamental right of all, the right to life. It is intimately concerned with the protection and preservation of the rights and freedoms granted to persons in Zimbabwe by the Constitution. Its non-frivolous submission is that, in the circumstances which presently obtain, the carrying out of the death sentence would amount to an abuse of the protection guaranteed the condemned prisoners under s 15(1).

It would be wrong, therefore, for this Court to fetter itself by pedantically circumscribing the class of persons who may approach it for relief to the condemned prisoners themselves, especially as they are not only indigent but, by reason of their confinement, would have experienced practical difficulty in timeously obtaining interim relief from this Court.” (the underlining is mine)

Section 24(1) of the Constitution specifically provides for constitutional applications to be brought on behalf of persons in custody. I have no doubt that in the Catholic Commission case supra the concession was made on the basis that the people, on whose behalf the application was made, were in custody.

The Catholic Commission case supra is no authority for the proposition that a public body, such as the present applicant, has locus standi in judicio to make an application in terms of s 24 of the Constitution for and on behalf of members of the public. The Catholic Commission case supra, in my view, is of no assistance to the applicant in the present case.

F. CAPITAL RADIO (PVT) LTD v BROADCASTING AUTHORITY OF ZIMBABWE AND ORS SC 128/02

The issue of locus standi in judicio was raised in the Capital Radio case supra. In that case I made the following observation at pp 4-5 of the cyclostyled judgment:

“This Court is essentially an appeal court. It enjoys no original jurisdiction except in constitutional matters in terms of s 24 of the Constitution. Thus the jurisdiction and the locus standi of litigants seeking to approach this Court in terms of s 24 have to be found within the four corners of s 24 of the Constitution. This restriction does not affect a litigant that wishes to institute a constitutional application in the High Court. The provisions of s 24 do not, in any way, circumscribe the locus standi of an applicant in the High Court. In the High Court the common law test, namely having an interest in the matter under adjudication, is sufficient to establish locus standi (Van Winsen, Cilliers and Loots stated in Herbstein & Van Winsen The Civil Practice of the Supreme Court of South Africa 4 ed at 364; Zimbabwe Teachers’ Association and Ors v Minister of Education 1990 (2) ZLR 48 at 51B et seq). In a constitutional application in the High Court all that a litigant is required to show to establish locus standi is a substantial interest in a matter.

A direct approach to the Supreme Court requires a litigant to allege that his not another person’s fundamental right has been violated. Obviously it is not sufficient to merely allege that one’s fundamental right has been, is (being), or is likely to be, violated. The factual basis for such an allegation has to be set out. It follows, therefore, that when a litigant is denied a hearing by this Court because he has no locus standi that does not necessarily mean that the door to litigation has been closed. It may merely mean that the litigant has commenced his application in the wrong forum, taking into account the basis of his locus standi.

A constitutional application commenced in the High Court can always find its way to the Supreme Court on appeal. In short, the basis of a litigant’s locus standi in the High Court is much wider than it is in this Court sitting as a constitutional court. In my view, it would be doing violence to the language of s 24 of the Constitution to ascribe to it the meaning that it is sufficient to allege an interest in the matter in order to establish locus standi.”

The remarks I made in the Capital Radio case supra apply with equal force to this application.

G. MINISTER OF LANDS AND ORS v COMMERCIAL FARMERS’ UNION 2001 (2) ZLR 457

The applicant also cited the Commercial Farmers’ Union case supra as supportive of its contention.

Although the issue of locus standi in judicio was never specifically raised and determined, the Court proceeded on the basis that the alleged violations of the Declaration of Rights were in respect of the members of the Commercial Farmers’ Union. Indeed, if the present applicant had founded its locus standi in judicio on the basis that the enshrined rights of its members have been, or are likely to be, violated, this Court would have had no difficulty in accepting that the applicant has the locus standi in judicio in this case.

In his supplementary heads of argument, Mr Moyo has cited a number of authorities, both local and from other jurisdictions, which support the proposition that an organisation such as the Law Society has a substantial interest, and consequently locus standi in judicio, in an application challenging the constitutionality of a statute. I agree with the submission and the authorities to the extent that such locus standi in judicio is based on common law.

However, locus standi in judicio to make a direct application to the Supreme Court, in terms of s 24 of the Constitution, is much narrower than the common law.

CONCLUSION

On the basis of the cited authorities, the applicant has no locus standi in judicio to bring this application to the Supreme Court in terms of s 24 of the Constitution.

I have no difficulty in accepting the general submission made by Mr Moyo that the Law Society has a substantial interest in a statute that is ultra vires the Constitution. I do not, however, accept that this substantial interest is sufficient to vest the applicant with locus standi in judicio to make an application in terms of s 24 of the Constitution.

Locus standi to bring a constitutional application to the Supreme Court in the first instance must be found within the four corners of s 24 of the Constitution. It is not sufficient to simply establish that the applicant has an interest in the matter. The applicant has to go further and establish that the Declaration of Rights has been or is likely to be contravened in respect to itself.

The applicant in this case has failed to establish that a constitutional right, enshrined in the Declaration of Rights, has been or is likely to be violated in respect of itself by the impugned Act.

While the applicant may be entitled to bring its application before the High Court on the basis argued before us, it certainly has not established the basis for approaching the Supreme Court directly in terms of s 24 of the Constitution.

In the result, the point in limine is determined in favour of the respondents. As has become the practice in matters such as this, there will be no order as to costs.

CHEDA JA: I agree.

ZIYAMBI JA: I agree.

MALABA JA: I agree.

GWAUNZA JA: I agree.

Scanlen & Holderness, applicant's legal practitioners

Civil Division of the Attorney-General’s Office, respondents' legal practitioners