CHIHAVA & ORS v PRINCIPAL MAGISTRATE & ANOR

SUPREME COURT, HARARE

[Opposed Application CCZ 6-15]

June 11, 2014 and July 15, 2015

CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI, GWAUNZA, GARWE, GOWORA, HLATSHWAYO AND GUVAVA JJCC AND CHIWESHE AJCC

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 (1^st 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

GWAUNZA JCC:

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:

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"175 Powers of courts in constitutional matters

(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 merely frivolous or vexatious."

It is the respondent's contention, in light of this provision, that the applicants' failure to approach this Court in terms of s 175(4) of the Constitution was "fatal" to the application.

Section 85(1)¹ of the Constitution provides as follows:

"85 Enforcement of fundamental human rights and freedoms

(1) Any of the following persons namely-

(a) any person acting in their own interests;

(b) - (e) ...

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." (my emphasis)

The word "court" is not defined in s 332 of the Constitution, but in the context in which it is used appears to include the Constitutional Court. It seems to me therefore that on a strict, literal reading of s 85(1)(a), it could be argued, as the appellants briefly do in casu, that beyond what is expressly stated therein, the wording does not place any restrictions on the type of person who may approach the Constitutional Court directly.

Firstly, the section is not prefixed with the words "Subject to ..." or "Save as otherwise provided in terms of ..."

These phrases are normally used in legislative drafting parlance to indicate that the provision in question does not have unfettered application but is to be applied only to the extent that it does not contradict the specific other provisions mentioned. This is clearly not the case in casu.

Secondly, the applicants are clearly acting in their own interest, and are alleging a violation of their fundamental rights. Thirdly and more specifically, it could be argued that s 85(1) of the Constitution does not expressly exclude a direct approach to this Court where the violations alleged were perpetrated in the course of proceedings in a lower court.

This situation is to be contrasted with some provisions of s 24 of the Zimbabwe Constitution (Transitional, Supplementary and Consequential Provisions) Order, 1980 ) "old Constitution", which effectively are the precursor to some parts of both ss 85 and 175 of the current Constitution. Section 24 of the old Constitution read as follows in relevant parts:

"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 or 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)." (my emphasis)

In interpreting s 24(3) of the old Constitution and its effect, a number of authorities ruled that it rendered the provisions of s 24(2), mandatory. In other words, any constitutional issue that arose during proceedings in a lower court, had to be referred to the Supreme Court (sitting as a Constitutional Court), in terms of s 24(2). Section 175(4) of the current Constitution is an exact replica of the old Constitution s 24(2).

It was for instance held by MALABA JA (as he then was), in Tsvangirai v Mugabe & Anor 2006 (1) ZLR 148 (S) as follows:

"It is the duty of the party who wants a question as to the contravention of the Declaration of Rights arising in the proceedings in the High Court, or in a court subordinate to it, referred to the Supreme Court for determination, to ensure compliance with the provisions of s 24(2). The requirement to comply with the procedure prescribed thereunder is made mandatory by the provision of s 24(3)".

In the earlier case of Jesse v Attorney General 1999 (1) ZLR 121 (S), GUBBAY CJ (as he then was) had similarly stated as follows at 122D:

"Put differently, the question is whether an applicant may, during the course of proceedings in the High Court, as in any court subordinate to it, simply ignore the provisions of s 24(2), and utilise the procedure laid down in s 24(1).

I entertain not the slightest doubt that the resort by the applicant to s 24(1) of the Constitution was impermissible."

GUBBAY CJ went on to dismiss the application before him, for contravening s 24(3) of the old Constitution. It is thus evident that the application in casu would have been declared impermissible, and/or been dismissed, had it been brought in terms of the old Constitution s 24(1).

It should be noted however, that in the case of Martin v Attorney General & Anor 1993 (1) ZLR 153 (S) it was held that an exception to this general rule would arise in the situation where a lower court denied an application for referral in terms of s 24(2) of the old Constitution, for reasons other than those permitted under s 24. See also Mukoko v Commissioner-General of Police & Ors 2009 (1) ZLR 21 (S). In Martin's case, the refusal to refer the matter to the Supreme Court was found to have been premised on a misunderstanding by the Magistrates' Court, of the meaning of the phrase "frivolous or vexatious". The court held that in such circumstances the unsuccessful applicant was entitled to approach the Supreme Court directly in terms of s 24(1) of the old Constitution.

While this is not the situation that the case at hand is concerned with, it is nevertheless pertinent to note that an applicant such as the one in Martin's case (supra), would have had to initially make his application for referral to a lower court.

The last argument that could conceivably have been raised against a finding that the application in casu should suffer the same fate is that, despite s 175(4) of the Constitution repeating word for word, s 24(2) of the old Constitution, the section that followed it, that is s 24(3), was not similarly imported into s 175 of the current Constitution. This is the subsection that the authorities cited above interpreted as outlawing a direct approach to the Supreme Court. In addition to this, reference to the same subsection, in the old s 24(1) also failed to find its way into the new Constitution.

The sum total of all this, it appears to me, could be interpreted as evincing an intention, by the Legislature, to remove completely any "bar" that an applicant in terms of s 24(1) of the old Constitution might have confronted, arising from the fact that the constitutional issue in point arose during proceedings in a lower court. It could, further be interpreted as creating the impression that the options for redress that were open to an applicant envisaged in the old ss 24(2) (now s 175(4)), and 24(3) have been widened.

The critical questions that then arise, against this background, are:

1. Has the absence of restrictive provisions in both s 85 and s 175(4) (particularly the former), opened the door very widely, and given unfettered, direct access to the Constitutional Court, to any person who claims an existing, current or impending violation of their constitutionally guaranteed fundamental rights?, and

2. Was this the intention of the Legislature?

These questions in my view can only be answered on a proper consideration of relevant rules governing the interpretation of statutes generally and of the constitution in particular. In this respect, it is pertinent to note that a constitution is itself a statute of Parliament. Therefore, any rules of interpretation that are regarded as having particular relevance in relation to constitutional interpretation, can only be additional to the general rules governing the interpretation of statutes.

The starting point in relation the interpretation of statutes generally would be what is termed "the golden rule" of statutory interpretation. This rule is authoritatively stated thus in the case of Coopers & Lybrand and Others v Bryant 1995 (3) SA 761 (A) at 767:

"According to the 'golden rule' of interpretation, the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity, or some repugnancy or inconsistency with the rest of the instrument." (my emphasis)

In EA Kellaway Principles of legal interpretation of statutes, contracts and wills (1^st edn, Butterworths, Durban, 1995) at p 57, the author echoes this statement as follows:

"The dominating Roman-Dutch law principle is that an interpretation which creates an absurdity is not acceptable (that is 'interpretatio quae parit absurdum, non est admittenda).'"

See among other authorities, Ex parte Fourie en Andere 1962 (3) SA 614 (O); S v Nyathi 1978 (2) SA 20 (B) and Canca v Mount Frere Municipality 1984 (2) SA 830 (TK).

The learned author, at p 62, further states:

"Even if a (South African) court comes to the conclusion that the language is clear and unambiguous, it is entitled to reject the purely literal meaning if it is apparent from the anomalies which flow therefrom that the literal meaning could not have been intended by the legislature." (my emphasis)

Apposite to the circumstances of this case, the learned author, after considering a number of authorities, makes the following remarks at p 61:

"While it is not permissible to speculate as to the purpose of an enactment, the legislative purpose may be sought from the subject matter of the Act, the enacting clauses in the whole enactment, the state of the law before the enactment was passed and the surrounding circumstances." (my emphasis). See also Venter v R 1907 TS 910; Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530.

And lastly at p 293, in reference to the maxim "in pari materia" the learned author states:

"According to Roman-Dutch law, a later enactment not clear as to its meaning, which has analogous provisions with regard to, or clauses corresponding with, an earlier enactment, and particularly where the later enactment deals with the same subject matter, should, where feasible, be so interpreted that both provisions cohere, so that the contents of the earlier one can throw light on the later, unclear provision." (See among other authorities, Brink v Alfred Mc Alpine & Son (Pty) Ltd 1971 (3) SA 741 (A); Durban City Council v Shell and BP Southern Africa Petroleum Refineries (Pty) Ltd 1971 (4) SA 446 (A)).

The principles set out in the dicta cited above can aptly and instructively be summarized as follows:

(i) The Legislature is presumed not to intend an absurdity, ambiguity or repugnancy to arise out of the grammatical and ordinary meaning of the words that it uses in an enactment.

(ii) Therefore, in order to ascertain the true purpose and intent of the Legislature, regard is to be had, not only to the literal meaning of the words, but also to their practical effect.

(iii) In this respect – 

(a) the words in question must be capable of an interpretation that is "consistent" with the rest of the instrument in which the words appear;

(b) the state of the law in place before the enactment in question, is a useful aid in ascertaining the legislative purpose and intention, and

(c) where an earlier and later enactment (or provision) deals with the same subject matter, then, in the case of uncertainty, the two should be interpreted in such a way that there is mutual consistency.

Turning now to the additional considerations that are particular to the interpretation of the constitution, I find the following dictum from the Namibian case of Minister of Defence, Namibia v Mwandinghi 1992 (2) SA 355 (NmS) at 364A-C to be both apposite and instructive:

"The whole tenor of chap 3 and the influence upon it of international human rights instruments, from which many of its provisions were derived, call for a generous, broad and purposive interpretation that avoids 'the austerity of tabulated legalism.'" (my emphasis)

See also among others, Rattigan & Ors v Chief Immigration Officer & Ors 1994 (2) ZLR 54 (S); Capital Radio (Pvt) Ltd v Broadcasting Authority of Zimbabwe & Ors 2003 (2) ZLR 236 (S)

These remarks are echoed in the following summation by the learned author EA Kellaway (op cit) at p 216:

"The principle of interpretation of a state's constitution incorporating a bill of rights may be stated thus:

'An interpreter should follow the submitted triple synthesis of literalism, intentionalism and purposiveness principle, as is done in the interpretation of any other statute'..."

Thus while a constitution is to be interpreted in accordance with the rules relating to statutes generally, the authorities suggest that a court called upon to interpret such a constitution should give a generous and purposive construction to its provisions, particularly the entrenched fundamental rights and freedoms. It appears to me that in this process the purpose of the provision in question is to be given particular attention.

When all this is applied to the circumstances of this case, there is in my view no gainsaying the fact that a literal and grammatical meaning ascribed to s 85(1) of the Constitution would be inconsistent with s 175(4) of the Constitution. This is to the extent that such meaning would give room to litigants in proceedings underway in a lower court to abandon such proceedings midstream and without any ceremony, in order to approach the Constitutional Court directly in terms of that section. Such a meaning would thus introduce an absurdity and possible chaos to a process that, in terms of the more expansive s 24 of the old Constitution, was free of such anomalies.

It is evident that the purpose of the old s 24 and in particular subss (1), (2) and (3), was to inject order and certainty into the process by which constitutional issues arising during proceedings before the lower courts, were referred to the Constitutional Court order in the sense that the lower court had the opportunity to call and hear evidence on, and consider, the issue so as to determine whether it is not frivolous or vexatious. Only then did the court refer the issue to the Constitutional Court. Through this process, the Constitutional Court was shielded from a situation where frivolous and undeserving cases might have been directly brought to it. There was certainty in the process in that the lower court, where it referred the matter, was fully informed as to both the reason for, and the effect of, such referral. The effect would be a formal deferment of the proceedings in that court, pending a constitutional court determination of the issues referred to it. More importantly, the risk of parallel proceedings being pursued in the Constitutional and the lower courts, on different aspects of the same case but based on the same facts, was obviated.

It should be noted that the case at hand is an example of the absurdity that may arise from a strict, literal construction of s 85(1) of the Constitution. The proceedings in the Magistrates' Court were postponed by consent of the parties. The next thing that happened was a direct application to this Court, in which aspects of those proceedings are being impugned. There is nothing on the record to suggest that the Magistrates' Court was made aware of this development, or if so, through what procedure and to what effect. It may therefore be safe to assume that the lower court is still in the dark in this regard. Further to this, it appears from the facts of the case that evidence should have been led in the lower court, to enable the magistrate to determine whether or not the case merited a referral to the Constitutional Court. The end result is that the latter court is seized with a matter that might not only have required viva voce evidence to be led, but may, for all intents and purposes, have been ruled frivolous or vexatious by the magistrate. This Court is not able to call and hear viva voce evidence from the parties, and would thus be handicapped in terms of properly determining the matter.

I therefore entertain no doubt that the certainty referred to above would be completely eroded were the courts to operate on the basis of a literal and grammatical interpretation of s 85(1) of the Constitution. This circumstance is not only highly undesirable, it would also constitute an affront to the time honoured common law principle that a superior court should be slow to intervene in ongoing proceedings in an inferior court, except in exceptional circumstances. This principle is persuasively articulated as follows in the case of Wahlhaus and Others v Additional Magistrate, Johannesburg and Another 1959 (3) SA 113 (A) at 120A:

"The learned authors of Gardiner and Lansdown (6^th ed., vol. I
p. 750) state:

?While a superior court having jurisdiction in review or appeal will be slow to exercise any power, whether by mandamus or otherwise, upon the unterminated course of proceedings in a court below, it certainly has the power to do so, and will do so in rare cases where grave injustice might otherwise result or where justice might not by other means be attained...'"

It seems to me that the ratio in the cases of Tsvangirai v Mugabe & Anor and Jesse v Attorney General (supra), was a reaffirmation of this principle, and that it found fortification in s 24(3) of the old Constitution. Despite this "fortification" not having found its way into the new Constitution, I am satisfied that the basic principle remains. It is, in any case, trite that a statute should, where possible, be construed in conformity with the common law rather than against it, except where the statute is clearly intended to alter the common law. (See Johannesburg Municipality v Cohen's Trustees 1909 TS 811). I do not find anything in the wording of s 85(1)(a) that could be said to evince an intention to oust common law on the issue in point.

Sections 85(1) and 175(4) of the current Constitution and s 24 of the old Constitution, all deal with the same subject matter, that is, the methods by which matters may be brought to the Constitutional Court. To that extent, I am satisfied no basis exists for interpreting the later provisions in such a way that they do not "cohere" with the earlier provisions. In other words, the provisions of the old s 24 should be taken as "throwing light" on the provisions of s 85(1)(a) and 175(4) of the current Constitution.

I find, when all is told, that the above expose and analysis of the law and authorities on statutory interpretation clearly favour a finding, in casu, that it was not the intention of the Legislature to oust a procedural regime that ensured order and certainty in the administration of justice in the courts, and to introduce in its place, one that would result in absurdity, disorder and ambiguity. Clearly, the anomalies that would flow from a literal meaning of s 85(1)(a) could not have been intended by the Legislature.

Consequently and except in circumstances akin to those in Martin's case (supra), any constitutional issue that arises during proceedings in a lower court ought to and must be brought to this Court only upon referral in terms of s 175(4) of the Constitution. It follows from this, that the instant application is not properly before this Court.

In the final result, I find that the point in limine raised by the respondent has merit and ought to be upheld.

In the result, it is ordered as follows,

1. The point in limine raised by the respondents be and is hereby upheld.

2. The application is struck off the roll.

3. There shall be no order as to costs.

CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI, GARWE, GOWORA, HLATSHWAYO and GUVAVA JJCC and CHIWESHE AJCC concurred.

Mangwana & Partners, applicants' legal practitioners

National Prosecuting Authority, first and second respondents' legal practitioners

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