Michael Nyika (2) Crispen Tobaiwa v Minister of Home Affairs (2) Commissioner General of Police (3) Inspector Damburai (4) Lisborne Chibanda

### Preamble
Judgment No. CCZ 5/20
1
Constitutional Application No. CCZ 56/17
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REPORTABLE:     (12)

MICHAEL     NYIKA     (2)     CHRISPEN     TOBAIWA

v

MINISTER     OF     HOME     AFFAIRS     (2)     COMMISSIONER     GENERAL     OF     POLICE     (3)      INSPECTOR     DAMBURAI     (4)     LISBORNE     CHIBANDA

CONSTITUTIONAL COURT OF ZIMBABWE

GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, BHUNU JCC & UCHENA JCC

HARARE: MAY 16, 2018 & JULY 14, 2020

T Biti, for the applicants

L Uriri, for the respondents

GARWE JCC

[1]	This is an application made in terms of s 175(3) of the Constitution of Zimbabwe, 2013, for an order confirming a declaration of constitutional invalidity made by the High Court of Zimbabwe.

[2]	After considering the facts of this matter and the law applicable thereto, I am in no doubt that the decision by the court a quo to deal with the question of the constitutionality of s 70 of the Police Act [Chapter 11:10] was procedurally irregular and accordingly null and void.  The   determination rendered by the court a quo on that question was therefore a nullity and, consequently, the present application for a declaration of constitutional invalidity stands to be struck off the roll.

FACTUAL BACKGROUND

[3]	Both applicants were regular members of the Zimbabwe National Army stationed at One Zimbabwe Armored Car Regiment, HQ Squadron, Inkomo Barracks.  On 19 July 2014, whilst having apparently hitched a lift that was proceeding to Karoi, they and the other occupants of the vehicle came across a police patrol under the command of the third respondent at some place in the Banket area.  It was at night.  The police officers allegedly opened fire, seriously injuring both applicants.  Both were consequently hospitalized at Parirenyatwa Hospital.  On 9 June 2015 both applicants instituted civil proceedings against the respondents in the High Court, seeking payment of delictual damages arising out of the negligent and wrongful use of firearms by the police.  As first defendant, the applicants cited the Ministry of Home Affairs.

[4]	The respondents, as defendants in the civil suit, filed a plea in bar on 9 July 2015.  More specifically the respondents pleaded, firstly, that the applicants, as plaintiffs, had instituted proceedings after the lapse of the period of eight months provided for in s 70 of the Police Act [Chapter 11.10] (“the Police Act”) and that, consequently, their claims had become prescribed.  Secondly, they pleaded that the failure to cite the Minister of Home Affairs was a fatal irregularity rendering the proceedings against the Ministry a nullity.  The applicants did not replicate to the plea in bar.

[5]	The respondents proceeded to file their heads of argument in support of the plea in bar.  They sought an order for the dismissal of the applicants’ claim with costs.  The applicants also filed heads of argument in response.  It was only in those heads of argument that the applicants alleged, for the first time, that as they had been hospitalized until November 2014 and October 2014 respectively, prescription had only started to run from those dates and not from the date of the shooting.  For this proposition they relied on s 6(1)(a) of the Prescription Act [Chapter 8.11] which provides that the running of prescription shall be interrupted if the person against whom prescription is running is prevented from instituting proceedings by a superior force or any enactment or order of court.

[6]	It is important to highlight at this stage that the issues that fell for determination before the court a quo following the filing of the plea in bar were, firstly, whether the claims were prescribed and, secondly, whether the citation of the Ministry of Home Affairs (“the Ministry”) was proper.  The applicants, however, proceeded to file supplementary heads of argument on 28 September 2015 in which they raised the constitutionality of s 70 of the Police Act which prescribes a maximum of eight (8) months within which proceedings are to be brought against the Police.  They submitted that s 70 of the Police Act violated their right of access to the courts as provided for in s 69(2) of the Constitution of Zimbabwe and their right to equal protection of the law enshrined in s 56(1) of the same Constitution.  The respondents, in their supplementary heads, argued that s 70 of the Police Act was a reasonable limitation of the right of access to the courts.  The court a quo proceeded to set the matter down as an opposed application with the sole issue for determination being the constitutional challenge to the eight-month time limit stipulated in s 70 of the Act.  This is where the whole matter went off the rails and was the genesis of the difficulties that have bedevilled this matter.

[7]	The court a quo appears to have forgotten that the only matter before it was the plea in bar in which two issues, viz prescription and the propriety of the citation of the Ministry, fell for determination.  It proceeded to deal with the matter as if the only issue before it was the constitutionality of s 70 of the Police Act.  In this regard the court a quo was clearly wrong.  The constitutionality of s 70 of the Police Act was not an issue requiring determination by it.  It had only been required to deal with the plea in bar.  It is correct that the issue of the constitutionality of s 70 had been belatedly raised in supplementary heads and that the constitutionality of that section had a bearing on the issues placed before the court. However, it was not an issue for determination by the court sitting as an ordinary court to hear a plea in bar.  The court should have mero motu referred the question of the constitutionality of s 70 to the Constitutional Court so that this Court would definitively state the correct legal position on the matter.  With that determination by this Court, the court a quo would then have been able to dispose of the issues raised in the plea in bar.

[8]	The propriety of citing the first respondent as the Ministry of Home Affairs had been made an issue by the respondents.  The court a quo was therefore required by law, in addition to the issue of prescription, to determine that issue.  Instead, it (the court) proceeded to substitute the Minister as first respondent and remarked in its judgment that:

“The respondents pointed out that applicants sued the Ministry of Defence (sic) when they should have sued the Minister of Defence (sic).  The error in citation can (sic) be corrected upon application and hence I have chosen to spell out the correct party thereto.” (italics are for emphasis)

[9]	The court then proceeded to consider the constitutionality of s 70 of the Police Act.  For purposes of this judgment, it will not be necessary to go into a detailed analysis of the law that was considered by the court in coming to the conclusion that s 70 did not pass constitutional muster.  Ultimately, the court made the following order:-

1. That s 70 of the Police Act was unconstitutional.

2. That the matter be referred to the Constitutional Court in terms of s 175(1) of the Constitution of Zimbabwe, 2013.

3. That there be a stay of the High Court proceedings pending the decision of this Court.

[10]    It is unclear on what legal basis the court a quo “referred” the matter to this Court in terms of s 175(1) of the Constitution.  That section merely provides that an order concerning the constitutional invalidity of any law has no force unless confirmed by this Court. The record of the proceedings confirms that the “referral” was at the instance of the applicants. The applicants had requested the court a quo to dismiss the special plea “on the basis that s 70 is unconstitutional and the matter must therefore be referred to the Constitutional Court for confirmation”.

PROCEEDINGS IN THIS COURT

[11]	What happened thereafter is aptly captured in the application that was subsequently made by the applicants for confirmation of the High Court order.  After the “referral”, the matter was then set down before this Court on 28 September 2016.  The respondents raised two issues in limine, namely whether the Ministry of Home Affairs had been properly made a defendant and whether the matter had been correctly “referred” to this Court in terms of s 175(1) of the Constitution of Zimbabwe.  In their heads of argument in the present matter, the respondents have submitted that they made the further point that the court a quo had no jurisdiction to relate to the constitutionality of s 70 of the Police Act without referring the same to this Court in terms of s 175(4) of the Constitution of Zimbabwe.  It is common cause that this Court struck the matter off the roll with no order as to costs.  That order, dated on 28 September 2016, does not state the basis upon which the matter was struck off the roll and, more specifically, whether the issue of jurisdiction was a consideration in the disposition of the matter.

[12]	In order to get around the order striking the matter off the roll, the applicants then made a chamber application to the High Court in which they sought “confirmation” that an order had indeed been made during the earlier proceedings in that court amending the citation of the first respondent to read Minister of Home Affairs (not Defence as stated in the corrigendum).  The applicants say the application was not opposed.  In an order dated 2 March 2017, the trial judge a quo then made the following order:-

“1. Pursuant to the application made on the 17th March 2016, the citation of the 1st defendant in Case No. HC 5310/15 and HC 5311/15 be and is hereby changed and substituted to that of the “Minister of Home Affairs”.

2. There be no order as to costs.”

[13]	Armed with that “confirmation” by the trial court, the applicants, on 5 September 2017, then filed an application for condonation of the late noting of an application to confirm the constitutional invalidity of s 70 of the Police Act.  This application appears to have been made pursuant to r 31(5) of the Constitutional Court Rules, which had come into operation in June 2016. The rule provides that a person seeking to apply for an order of constitutional invalidity shall file such application within fifteen days of the date of the order.

[14]	By order dated 3 November 2017, the Chief Justice condoned the late filing of the application to confirm the constitutional invalidity of s 70 of the Police Act.  The Chief Justice made two other orders which are not relevant to the issues that arise before this Court.

[15]	The respondents opposed the application for confirmation of constitutional invalidity of s 70 of the Police Act.  They took two preliminary points.  First, that notwithstanding the latter order by the court a quo amending the citation of the first respondent to read “Minister of Home Affairs”, the proceedings remained a nullity.  Once the applicants had cited the Ministry as opposed to the Minister as the first respondent, the proceedings were a nullity ab initio and could not be amended in the manner the court a quo had attempted to do.  Secondly, the respondents argued that the matter before the court a quo was not a constitutional issue.  It was an ordinary civil suit for delictual damages.  Once the constitutionality of s 70 of the Police Act had been raised, the court a quo did not have jurisdiction to determine that constitutional question.  Instead, it should have referred the question either mero motu or upon application by the applicants to this Court.  They therefore submitted that the matter was not properly before the court a quo and consequently the court a quo could not purport to exercise the substantive power it has in terms of s 171(1) of the Constitution to consider constitutional issues.  More specifically, the respondents argued that the High Court can only assume jurisdiction in constitutional matters where a constitutional matter has been brought directly to that court in terms of s 85 of the Constitution.  A constitutional question having arisen in non-constitutional litigation, the court a quo should have referred that question to this Court.  The respondents therefore prayed for the striking off of the application with costs on the higher scale.  The basis of the request for costs on the higher scale was that the same point on the lack of jurisdiction of the court a quo had previously been taken before this Court, after which an order had been made striking the matter off the roll.  The respondents also made submissions on the merits of the matter.  These are, however, not pertinent for purposes of the disposition of the present matter.

APPLICANTS’ SUBMISSIONS BEFORE THIS COURT

[16]	In their heads of arguments in the present matter, the applicants have submitted that s 70 of the Police Act is unconstitutional because it violates ss 56(1) and 69(2) of the Constitution of Zimbabwe.  In the heads they go to great lengths to deal with the approach to constitutional interpretation by a court.  At the end of it all, this Court is urged to find that the rights enshrined in the above constitutional provisions have been violated.  No attempt is made in the applicants’ heads to deal with the two issues, one of them crucial, raised by the respondents in their notice of opposition.

RESPONDENTS’ SUBMISSIONS BEFORE THIS COURT

[17]	The respondents, per contra, argue that the application before this Court is an abuse of process warranting an order striking it off the roll with costs on the higher scale.  They submit as follows. The matter previously came before this Court and was struck off principally because the applicants had issued process against the Ministry of Home Affairs which is not a legal persona.  The applicants then sought an order substituting the Minister in place of the Ministry.  The order granting such substitution is improper as it sought to substitute one party who has legal standing in place of one without such standing.  More critically, however, the constitutional question arose in ordinary civil proceedings and not constitutional proceedings brought in terms of s 85 of the Constitution.  The substantive power granted by s 171(1) of the Constitution was not available to the High Court.  That court could only have referred the matter to this Court and had no power to deal with the substantive constitutional issue that had arisen.  The judgment of the court a quo was therefore a nullity and this Court should accordingly decline jurisdiction to confirm the order of the court.

ISSUES ARISING FOR DETERMINATION

[18]	It is clear, from all the facts of this case, that two issues arise for determination before this Court.  The first is whether the Minister has previously been, and is still properly, cited before this Court as the first respondent and whether this Court is properly seized with that matter.  The second is whether the court a quo had jurisdiction to entertain the constitutional issue raised by the applicants for the first time in supplementary heads of argument filed in the court a quo.

CITATION OF THE 1ST RESPONDENT IN THE COURT A QUO

[19]   Although made a live issue by the parties, it is my considered view that this issue is not one that requires a determination by this Court.  Bearing in mind that the jurisdiction of this Court is to determine only constitutional issues and other issues connected with decisions on constitutional issues, it is clear that this is a matter that still requires determination by the court a quo at the appropriate time.  The issue is one of two issues that remained unresolved when the court assumed jurisdiction to decide the question of the constitutional validity of s 70 of the Act.  It is one of the two issues that the court a quo will still be required to determine in due course.  Were this Court to make a determination on this question at this stage, it would effectively entail an interference with unterminated proceedings that are more properly the province of the court a quo.  I therefore conclude that this is not a matter for determination by this Court and I accordingly decline the invitation to make such determination.

WHETHER THE COURT A QUO HAD THE POWER TO DEAL WITH THE ISSUE

OF THE CONSTITUTIONALITY OF SECTION 70 OF THE POLICE ACT

[20]	The matter before the court a quo was an ordinary claim for delictual damages.  The respondents pleaded prescription pursuant to s 70 of the Police Act and, in response, the applicants alleged that s 70 of the Police Act was unconstitutional, which allegation was upheld by the court a quo.  I have no doubt in my mind, as already indicated, that the court a quo was wrong in dealing with the question of the constitutionality of s 70 of the Police Act when the issues before it were whether the claim had prescribed and whether the Ministry of Home Affairs had been properly cited. The constitutionality of s 70 of the Police Act was not part of the issues raised in the plea in bar filed by the respondents which fell for determination before the court.

[21]	Section 175(4) of the Constitution of Zimbabwe provides as follows:-

“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 and vexatious.”

[22]   In Tsvangirai v Mugabe and Anor 2006 (1) ZLR 148(S), 158 E-F, the Supreme Court of Zimbabwe stated that “there are proceedings in the High Court from the moment an action is commenced or an application made until termination of the matter in dispute”. The court further remarked at p 158B-C:

“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.  We are concerned here with proceedings in the High Court.  There is no doubt that the question as to whether the delay in hearing and determining the election petition by the High Court contravened the Declaration of Rights guaranteed to the applicant in ss 18(1) and 18(9) of the Constitution arose in his mind when he had already commenced litigation.  The application made to the Supreme Court on 11 July 2005 is evidence of the fact that the question as to the contravention of the Declaration of Rights arose in his mind.  The question had a bearing on the matter in dispute, in that it alleged failure on the part of the High Court to discharge the judicial functions of the State in determining that matter within a reasonable time.”

[23]   The position has been stressed in several decisions of this Court that in cases where a constitutional matter arises in non-constitutional proceeding before a court, that court may, mero motu, or, on request must, refer such a question to this Court unless it considers the request to be frivolous or vexatious.

[24]    In Mushapaidze v St Annes Hospital & Ors CCZ 18/17, MALABA DCJ (as he then was) remarked:-

“If a question of violation of a fundamental right arises in proceedings before a subordinate court, the correct procedure for bringing the matter to the Constitutional Court is the one set out in s 175(4) of the Constitution.”

[25]	More pertinently, in Chihava & Anor v Mapfumo N.O 2015 (2) ZLR 31(5), this Court emphasised the same legal position.  The court noted in that case that whilst a subordinate court, such as the High Court, may, in terms of s 171(1), have jurisdiction to decide constitutional matters (except those that are the exclusive domain of the Constitutional Court), it (the court) cannot assume jurisdiction under s 171(1) of the Constitution if the constitutional question arises in the course of ordinary non-constitutional litigation.  The correct route to be followed in such a situation would be a referral in terms of s 175(4) of the Constitution which does not give the High Court the power to determine, at first instance, the substantive constitutional question arising in non-constitutional litigation.  At p 39 F-G, GWAUNZA JCC (as she then was) writing for the court, stated:-

“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(5) of the Constitution.  It follows from this that the instant application is not properly before the court….”

[26]   In light of the above authorities and others, it is clear that the court a quo had no jurisdiction to deal with the question of the constitutionality of s 70 of the Police Act.  The court was seized with the plea in bar filed by the respondents and the two issues raised in that plea were the only issues that the court was required to determine.  The question of the constitutionality of s 70 having been raised, the court a quo should have referred the matter for determination by this Court.  It did not itself have the jurisdiction to determine that constitutional issue.  In the event that this Court had, upon referral, made a determination on the constitutionality of s 70 of the Police Act, then the court a quo would have been under obligation to take into account that determination for purposes of disposing of the plea in bar before it. This is the essence of the referral process to this Court in terms of s 175(4) of the Constitution.

[27]   The decision by the court a quo to deal with the question was therefore void.  The order that followed thereafter was equally void and nothing could depend on it.  There is therefore nothing before this Court to confirm.  The application to confirm, based as it is on a nullity, it stands to reason, must be struck off the roll.  The issue that necessarily arises is one of costs.

COSTS

[28]   The respondents have prayed for the striking off of the application with costs on a higher scale.  For the reasons that follow, I find that there may indeed be a basis for a costs order against the applicants.

[29]    It is agreed between the parties that this application was struck off the roll due to fatal defects in the referral of the matter to this Court in terms of s 175(1) of the Constitution and the improper citation of the first respondent.  Pursuant to that striking off, the applicants applied for, and obtained, an order from the court a quo which was to the effect that the incorrect citation had been regularised and that the Minister had been substituted as the first respondent.  Armed with that order the applicants filed the present application, seeking the same relief of confirmation of constitutional invalidity.

[30]   It is well settled in this jurisdiction that mulcting a litigant with costs in constitutional matters is something that should be done in rare circumstances so that applicants seeking to enforce their fundamental rights are not unduly dissuaded from pursuing such rights.  But the law is also clear that in bad cases, there may well be justification for an order of costs – see r 55(2) of the Constitutional Court Rules, 2016.  The business of this Court should always be taken seriously.  Applications that suggest abuse of court process will no doubt warrant an order of costs, even on the higher scale.

[31]   Part of the difficulty encountered in this case was occasioned by the court a quo which did not seem to appreciate the limits of its jurisdiction.  It failed to appreciate that it did not, itself, have the power to determine the constitutionality of the impugned section of the Police Act.  Despite this, it is my considered view that a costs order is warranted in this case.

[32]    It was in September 2015 that the applicants requested the court a quo to dismiss the plea in bar on the basis that s 70 of the Police Act was unconstitutional and that the matter be referred to this Court for confirmation of constitutional invalidity.  The applicants may be excused for having taken that approach because, at that stage, no decided cases from this Court had authoritatively stated the correct approach to be taken in such cases.

[32]    In 2015, this Court made the position very clear in the Chihava decision (supra) that when a constitutional issue arises in non constitutional litigation, a party may, if so minded, apply for the referral of such issue to this Court in terms of s 175(4) of the Constitution.  A number of other decisions of this Court followed, including the Mushapaidze case (supra).

[33]  Notwithstanding the above decisions of this Court, the applicants’ legal practitioner filed, on 5 September 2017, the present application for confirmation of the order of the court a quo. It seems to me the legal practitioner was unaware of the decisions of this Court in matters of this nature.  The legal practitioner, exercising due diligence, should have been aware. The fact that he laboured under a mistaken apprehension of the correct legal position cannot justify a no-costs order against the applicants.  He is, after all, their agent, and the fact that they did not benefit from sound legal advice cannot absolve them. The respondents have been made to incur legal costs unnecessarily as the correct legal position had been spelt out previously.

[34]   Notwithstanding decisions of this Court that have stressed the correct approach to be followed in cases of this nature, it was the applicants who strenuously urged the court a quo to assume jurisdiction in a case where the court should not have done so.  Also abdicating its proper role, the court a quo did so.  By pursuing the confirmation of an order of constitutional invalidity granted in such circumstances, I am of the view that the applicants cannot escape an order of costs against them.

DISPOSITION

[35]    The result is that the application for confirmation is predicated on an order that is null and void. The application cannot succeed and must, as a consequence, be struck off the roll. For the reasons given, an order of costs on the ordinary scale is warranted in this case.

[36]	 It is accordingly ordered as follows:

“The application is struck off the roll with costs.”

GWAUNZA DCJ		:		I agree

MAKARAU JCC		:		I agree

GOWORA JCC		:		I agree

HLATSHWAYO JCC	:		I agree

PATEL JCC			:		I agree

GUVAVA JCC		:		I agree

BHUNU JCC			:		I agree

UCHENA JCC		:		I agree

Tendai Biti Law, applicants’ legal practitioners

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