[Opposed Application CCZ 6-15]

June 11, 2014 and July 15, 2015


Constitutional law – Application to Constitutional Court – in terms of section 85(1) of the Constitution during the course of proceedings in the Magistrates Court – Whether such application is proper without a referral in terms of section 175(4) of the Constitution – A referral under section 175(4) being mandatory whenever a constitutional issue arises during proceedings in a lower court.

Constitutional law – Principles of constitutional interpretation – Such principles being additional to the general rules of interpretation of statutes – Appropriateness of a generous and purposive interpretation.

The applicants approached the Constitutional Court in terms of s 85(1) of the Constitution of Zimbabwe alleging that the manner in which criminal proceedings against them where conducted in the Magistrates Court was a breach of their fair trial rights enshrined in s 70 of the Constitution. They sought an order quashing the proceedings and directing a trial de novo before a different magistrate. The applicants filed their application while proceedings were still pending in the Magistrates’ Court. The respondents raised a point in limine, contending that since the application was premised on a constitutional issue that arose during the course of proceedings in the Magistrates Court, the only course open to the applicants was a referral in terms of s 175(4) of the Constitution.

Held, upholding the point in limine, that any constitutional issue that arises during proceedings in a lower court ought to and must be brought to the Constitutional Court only upon a referral in terms of s 175(4) of the Constitution.

Held, further, that if, however, a lower court improperly refuses to refer a matter in terms of s 175(4), an unsuccessful applicant is entitled to approach the Constitutional Court directly in terms of s 85(1).

Held, further, that s 85(1) of the Constitution must not be given a literal and grammatical meaning that has the effect of giving any person a direct and unfettered access to the Constitutional Court, without regard to order and certainty in court processes.

Held, further, that in interpreting ss 85(1) and 175(4) of the Constitution, a generous and purposive interpretation has to be adopted to avoid the absurdity and disorder that would arise from parallel proceedings being pursued in the Constitutional Court and the lower courts on different aspects of the same case.


Cases cited:

Brink v Alfred McAlpine & Son (Pty) Ltd 1971 (3) SA 741 (A), referred to

Canca v Mount Frere Municipality 1984 (2) SA 830 (TK), referred to

Capital Radio (Pvt) Ltd v Broadcasting Authority of Zimbabwe & Ors 2003 (2) ZLR 236 (S), applied

Coopers & Lybrand and Others v Bryant 1995 (3) SA 761 (A), applied

Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530, referred to

Durban City Council v Shell and BP Southern Africa Petroleum Refineries (Pty) Ltd 1971 (4) SA 446 (A), referred to

Ex parte Fourie en Andere 1962 (3) SA 614 (O), referred to

Jesse v Attorney General 1999 (1) ZLR 121 (S), applied

Johannesburg Municipality v Cohen’s Trustees 1909 TS 811, applied

Martin v Attorney General & Anor 1993 (1) ZLR 153 (S), referred to

Minister of Defence, Namibia v Mwandinghi 1992 (2) SA 355 (NmS), applied

Mukoko v Commissioner-General of Police & Ors 2009 (1) ZLR 21 (S), referred to

Rattigan & Ors v Chief Immigration Officer & Ors 1994 (2) ZLR 54 (S), applied

S v Nyathi 1978 (2) SA 20 (B), referred to

Tsvangirai v Mugabe & Anor 2006 (1) ZLR 148 (S), applied

Venter v R 1907 TS 910, referred to

Wahlhaus and Others v Additional Magistrate, Johannesburg and Another 1959 (3) SA 113 (A), referred to


Legislation considered:

Constitution of Zimbabwe Amendment (No 20) Act, 2013, ss 70(1)(b), (c), (d), 85(1), 175(4), 332

Zimbabwe Constitution (Transitional, Supplementary and Consequential Provisions) Order, 1980 (SI 395 of 1980 of the United Kingdom), s 24


Book cited:

Kellaway EA Principles of legal interpretation of statutes, contracts and wills (1st edn, Butterworths, Durban, 1995) pp 57, 61, 62 and 293


P Mangwana, for the first, second and third applicants

S Fero, for the first and second respondents



This is an application in terms of s 85(1)(a) of the Constitution of Zimbabwe Amendment (No 20) Act, 2013 (“the Constitution”). The appellants allege that their constitutional rights as enshrined in ss 70(1)(b), 70(1)(d) and 70(1)(c) of the Constitution have been violated through the manner in which criminal proceedings against them were conducted in the Magistrates’ Court sitting at Chivhu. They seek an order that the proceedings be quashed and a trial de novo ordered before a different magistrate.

In limine

The respondents raise a point in limine, to the effect that the applicants are not properly before this Court. They contend that the applicants should have approached this Court through a referral of the matter to it by the Magistrates’ Court in terms of s 175(4) of the Constitution. This is in view of the fact that the constitutional issue upon which the application is premised arose during the course of proceedings in the Magistrates’ Court. It is not in dispute that the applicants took the opportunity availed by a postponement granted by consent in the Magistrates’ Court proceedings, to approach this Court directly.

Section 175(4) of the Constitution reads as follows:

This section of the article is only available for our subscribers. Please click here to subscribe to a subscription plan to view this part of the article.

Please click here to login