REPORTABLE (1)

Judgment No. SC 3/09

Constitutional Application No. 293/08

JESTINA MUNGAREWA MUKOKO v

(1) COMMISSIONER GENERAL OF POLICE

(2) MINISTER OF STATE SECURITY, LANDS, LAND REFORM AND SETTLEMENT IN THE PRESIDENT’S OFFICE

(3) ATTORNEY-GENERAL OF ZIMBABWE

(4) COMMISSIONER OF PRISONS (5) MISHROD GUVAMOMBE

SUPREME COURT OF ZIMBABWE

HARARE, JANUARY 12 & 14, 2009

M P Mahlangu, for the applicant

P Machaya, for the respondents

Before: CHIDYAUSIKU CJ, In Chambers

In this Chamber application the applicant seeks an order to depart from the Supreme Court Rules in regard to the set down of a Constitutional Court application made in terms of s 24(1) of the Constitution of Zimbabwe (hereinafter referred to as “the Constitution”). In other words, this is an application for the hearing of the Court application on an urgent basis.

Both counsel agree the matter is urgent. I accept that the matter is urgent. I, however, do not accept that the matter should be set down because the Constitutional Court application is fatally defective in that it does not comply with s 24 of the Constitution. Section 24 of the Constitution is peremptory. This Court has no discretion to condone a departure from compliance with s 24 of the Constitution. Consequently failure to comply with the procedure set out in s 24 of the Constitution is fatal to any Court application made in terms thereof. Although the Court application does not, as it should, state explicitly that it is being made in terms of s 24(1) of the Constitution, it is quite clear from the papers that it is being made in terms of that subsection. In my view, the applicant cannot proceed in terms of s 24(1). The Court application arises from proceedings in the magistrate's court and the applicant should have proceeded in terms of s 24(2) of the Constitution. Put differently, the Court application should have come to the Supreme Court by way of referral in terms of s 24(2) as opposed to a direct application in terms of s 24(1) of the Constitution.

The relevant part of s 24 of the Constitution 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.

(2) If in any proceedings in the High Court or in any court subordinate to the High Court any question arises as to the contravention of the Declaration of Rights, the person presiding in that court may, and if so requested by any party to the proceedings shall, refer the question to the Supreme Court unless, in his opinion, the raising of the question is merely frivolous or vexatious.

(3) Where in any proceedings such as are mentioned in subsection (2) any such question as is therein mentioned is not referred to the Supreme Court, then, without prejudice to the right to raise that question on any appeal from the determination of the court in those proceedings, no application for the determination of that question shall lie to the Supreme Court under subsection (1).

(4) The Supreme Court shall have original jurisdiction –

(a) to hear and determine any application made by any person pursuant to subsection (1) or to determine without a hearing any such application which, in its opinion, is merely frivolous or vexatious; and

(b) to determine any question arising in the case of any person which is referred to it pursuant to subsection (2);

and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of the Declaration of Rights:

Provided that the Supreme Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under other provisions of this Constitution or under any other law.”

Thus s 24 of the Constitution is very explicit in the following two respects -

(1) a party alleging violation of a guaranteed Constitutional right can approach the Supreme Court directly in terms of s 24(1); and

(2) if the alleged violation of the guaranteed right has arisen in any proceedings in the High Court or in any court subordinate to the High Court, the Supreme Court can only adjudicate on the matter upon referral by the lower court in terms of s 24(2).

Thus, when a matter is before the High Court or any court subordinate to the High Court, such as the magistrate's court as in this case, the question of the contravention of the guaranteed right should be referred to the Supreme Court by the court mero motu or at the instance of any one of the parties to the proceedings. That Constitutional question cannot be brought to the Supreme Court by way of an application in terms of s 24(1) of the Constitution. Section 24(3) of the Constitution expressly prohibits that. If the lower court fails to act mero motu or refuses upon application to refer the matter to the Supreme Court for reasons other than those permitted under s 24 of the Constitution, an applicant is then entitled to approach the Supreme Court in terms of s 24(1). See Martin v Attorney-General 1993 (1) ZLR 153 (S).

Section 24(3) of the Constitution specifically prohibits the making of an application in terms of s 24(1) in respect of matters arising in any proceedings in the High Court or in any court subordinate to the High Court. This Court has drawn the attention of legal practitioners to this provision in a number of cases. MALABA JA (as he then was) dealt with this issue in some detail in the case of Morgan Tsvangirai v Robert Gabriel Mugabe and Anor SC 84/05. The learned JUDGE OF APPEAL had this to say at pp 10-12 of the cyclostyled judgment:

“There are, however, two separate procedures prescribed in ss 24(1) and 24(2) of the Constitution by which redress of a contravention of the Declaration of Rights may be sought from the Supreme Court. In this case the question is whether the applicant ought to have used the procedure prescribed in terms of s 24(2) for the enforcement of the protection of the rights he claimed were contravened in relation to him.

In Mandirwhe v Minister of State 1986 (1) ZLR 1 BARON JA said that compliance with the procedure prescribed in s 24(2) of the Constitution was mandatory where there was litigation in progress and the determination of the question as to the contravention of the Declaration of Rights by the Supreme Court had a bearing on the decision by the High Court or the court subordinate to it on the matter in dispute in the proceedings in that court.

The learned JUDGE OF APPEAL said at 7F-8D:

‘The purpose of s 24 is to provide, in a proper case, speedy access to the final court in the land. The issue will always be whether there has been an infringement of an individual’s fundamental rights or freedoms, and frequently will involve the liberty of the individual; constitutional issues of this kind usually find their way to this Court, but a favourable judgment obtained at the conclusion of the normal, and sometimes very lengthy, judicial process could well be of little value. And even where speed is not of the essence there are obvious advantages to the litigants and to the public to have an important constitutional issue decided directly by the Appellate Division [now the Supreme Court] without protracted litigation.

Subsection (1) contemplates the situation in which it is clear from the outset that the existence of a remedy depends on whether there has been (or is likely to be) a contravention of the Declaration of Rights, when the person alleging to be aggrieved is given the right to go direct to the Appellate Division.

Subsection (2) deals with a different situation; it contemplates that proceedings have been commenced in the General Division [now the High Court] or in a subordinate court in circumstances in which it was not anticipated that the question of a contravention of the Declaration of Rights would necessarily arise, since otherwise one expects subs (1) to be invoked. The question having arisen, the subsection provides a speedy procedure for the determination by the Appellate Division of, in effect, a constitutional point of law without the necessity first to conclude the trial in the court of first instance and to come to this Court by way of appeal. When the question is referred to this Court, the proceedings are merely interrupted; this Court answers the question but the matter must be concluded in the court a quo. The subsection does not authorise the proceedings to be transferred to this Court.’

Section 24(2) of the Constitution only applies when there is a question arising in the proceedings in the High Court or in the court subordinate to the High Court.”

The learned JUDGE OF APPEAL went on to explain in some detail what constitutes a question arising in proceedings. The following is what he said at pp 12-13 of the judgment:

“The question is whether there were proceedings in the High Court at the time that (the) question as to a contravention of the Declaration of Rights arose. My view of the facts is that I must answer the question in the affirmative. The words ‘in any proceedings in the High Court’ mean proceedings that have come to or have been instituted in the High Court. They are proceedings that have found existence in the High Court, in the sense that that court has been called upon, through a method prescribed by law, to exercise the judicial functions of the State over the matter in dispute between the parties and it is in control of the conduct and progress of the proceedings.

The word ‘proceedings’ has a wider meaning in s 24(2) of the Constitution than ‘goings-on’ in court. There are no proceedings without an action or case. Proceedings ordinarily progress in steps. The word is, therefore, a general term, referring to the action or application itself and the formal and significant steps taken by the parties in compliance with procedures laid down by the law for the purpose of arriving at a final judgment on the matter in dispute. There are proceedings in being in the High Court from the moment an action is commenced or an application made until termination of the matter in dispute or withdrawal of the action or application. See Re Appleton French & Scrafton Ltd [1905] 1 Ch.D 749 at 753; Mundy v the Butterley Co Ltd [1932] 2 Ch.D 227 at 233; Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 at 219.

There is, therefore, no need to limit the very general words of s 24(2) of the Constitution and say that the question as to the contravention of the Declaration of Rights arises only when the court is actually sitting. The words ‘if in any proceedings in the High Court any question arises as to the contravention of the Declaration of Rights’ imply that proceedings may take place in the High Court without any such question arising.”

The judgment in Tsvangirai’s case supra was followed in Dr Daniel Shumba and Ano v The Zimbabwe Electoral Commission and Ano SC 11/08 where, after referring to the above passage of MALABA JA, I had this to say at p 15 of the cyclostyled judgment:

“Thus, it would appear from Tsvangirai’s case supra that once proceedings are commenced in the High Court or any subordinate court and a constitutional point arises from the pleadings or circumstances of the case the constitutional point has arisen from proceedings in that court.”

The facts of this case are that the applicant was placed on remand by the fifth respondent. The Court takes judicial notice of what constitutes a remand. It is the first formal procedure by a court to commence a criminal trial. There has to be a sufficient legal basis for a court to place an accused person on remand. The applicant contends that there was no legal basis to place her on remand. She makes the following averment in para 6 of the founding affidavit:

“(The fifth) respondent is Mishrod Guvamombe, the Provincial Magistrate at Rotten Row Magistrates Court who is cited herein in his official capacity as the magistrate who I believe unlawfully purported to remand me in custody without considering the unlawful circumstances that led to my appearance before him. His address for service is care of Rotten Row Magistrates Court, Harare.”

The applicant cites the fifth respondent in his official capacity as the person who presided in proceedings as a result of which the applicant was remanded in custody. The applicant contends that remanding her in custody was unlawful and violated her constitutionally guaranteed right. On these facts, clearly the question of the alleged violation of the applicant’s constitutional guaranteed rights, in particular the allegation of unlawful remand, arises from the proceedings in the magistrate's court before the fifth respondent.

The argument by the applicant’s counsel that the issue of the contravention of the Declaration of Rights was not specifically raised during those proceedings is simply untenable. Indeed a similar argument was raised in Tsvangirai’s case supra and was dismissed by this Court.

Thus, quite clearly the Constitutional application should have been brought to this court by way of referral in terms of s 24(2) of the Constitution and failure to do so is fatal to the application.

As I have already stated, the parties are in agreement that this matter is urgent. Mr Machaya had indicated that while he accepted that the matter was urgent, he had intended to raise the issue of non-compliance with s 24 of the Constitution at the actual hearing of the Constitutional Court application. The applicant’s counsel indicated that they would prefer the matter to be set down before the full Constitutional Court and the issue of the non-compliance with s 24 of the Constitution be determined then. In my view, following that course would not be in the best interest of the applicant as that would lead to further unnecessary delay in the determination of the issues that she raises. The previous decisions of this Court on this point are very clear and setting this application down before a full Constitutional Court is an exercise in futility. Justice will not be served by following a road that leads nowhere. Indeed, I would have considered setting down the matter in the Constitutional Court for determination of the issue if the applicant’s counsel had wished to argue that both Tsvangirai’s case supra and Shumba’s case supra were wrongly decided. However, that is not his stance. The applicant’s counsel admitted that he has not read the above judgments. He did not ask for an opportunity to familiarise himself with those judgments and then reconsider his position. Given this attitude, setting this matter down for argument before the full Constitutional Court will be, as I have already stated, an exercise in futility and will cause a further delay in the finalisation of the applicant’s search for a determination by this Court. If the applicant wishes this matter to be determined by the Supreme Court she should proceed in terms of s 24(2) and not s 24(1).

It is a matter of regret that an opportunity to determine this application on an urgent basis has been squandered by the crass incompetence and sheer ineptitude of the applicant’s legal practitioners, who do not appear to have taken the trouble to peruse the provisions of s 24 of the Constitution before committing pen to paper and drafted this application.

In my view, the best way forward is to dismiss this Chamber application and hopefully the applicant’s legal practitioners will familiarise themselves with the provisions of s 24 of the Constitution and the judgments of this Court before advising the applicant on the best course to follow.

Before concluding, I wish to make the following observation. I was advised from the Bar, following my enquiry, that the applicant has not received proper medical examination despite Dr Frances Ann Lovemore’s affidavit that the applicant should be examined in appropriate medical circumstances. Doctor Lovemore had this to say in para 3 of her affidavit:

“3. I duly compiled an affidavit setting out my findings following the examination and this is attached hereto as Annexure ‘E’. The facilities at Chikurubi were rudimentary and I could not carry out procedures requiring investigations where one needs equipment such as x-rays. In addition, there was neither water nor electricity at the facility where I examined the applicant. In my professional view, it is absolutely crucial that the applicant be availed further medical investigations at a medical facility that is properly equipped with back-up power and investigation facilities such as the Avenues Clinic. From a medical point of view, I am extremely concerned that the applicant has not been allowed to attend at (the) Avenues Clinic for these further medical investigations and treatment and if permanent physical harm is to be minimised, particularly to her feet and general health, it is imperative that she be given access to these medical facilities without delay, and that she thereafter be dealt with as recommended by medical personnel on all issues associated with her health.”

The applicant should be afforded appropriate medical attention as a matter of urgency. Mr Machaya from the Attorney-General’s Office has undertaken to assist in the facilitation of this.

The Chamber application is dismissed. The applicant should comply with the provisions of s 24 of the Constitution before this matter can be set down as a Constitutional application. There will be no order as to costs.

Mtetwa & Nyambirai, applicant's legal practitioners

Office of the Attorney-General, respondents’ legal practitioners