Seleman Saidi Versus Medical AND Dental Practitioners’ Council AND Health Professions Authority OF Zimbabwe AND Minister OF Health AND Child CARE

### Preamble
1
HH 604 - 25
HCH 7723/23
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SELEMAN SAIDI

versus

MEDICAL AND DENTAL PRACTITIONERS’ COUNCIL

and

HEALTH PROFESSIONS AUTHORITY OF ZIMBABWE

and

MINISTER OF HEALTH AND CHILD CARE

HIGH COURT OF ZIMBABWE

DEME J

HARARE, 11 September 2025 & 7 October 2025

Opposed Application

L Madhuku, for the applicant

T Zhuwarara, for the 1st-2nd respondents

No appearance for the 3rd respondent

DEME J:    The applicant approached this court through the application instituted in terms of section 85(1)(a) of the Constitution. More particularly, the applicant seeks the following relief:

“1. 	That the decision of the first and second respondent, to restrict applicant’s practice as a 	medical practitioner to the areas of public health, forensic pathology and histopathology 	only is an infringement of the applicant’s right to freedom of conscience enshrined in 	section 60(1) of the Constitution of Zimbabwe, 2013.

2. 	That the decision of the 1st and 2nd Respondent, to restrict applicant’s practice as a medical 	practitioner to the areas of public health, forensic pathology and histopathology only is an 	infringement of the applicant’s right to choose and carry on any profession, trade or 	occupation enshrined in section 64 of the Constitution of Zimbabwe, 2013.

3. 	As appropriate relief:

IT IS DECLARED:

That the applicant has a legal right to carry on his chosen profession of being a medical practitioner while at the same time maintaining his belief that blood is sacred and therefore that he would not order or administer blood transfusions for his patients but would instead mandatorily give his patients (who may need blood transfusion) the choice between treatment without a blood transfusion and being transferred to other medical practitioners doing blood transfusions.

4. 	There shall be no order as to costs.”

The applicant is a registered medical practitioner whose religious beliefs do not allow him to administer blood transfusions. As a result of his beliefs, he was charged with unprofessional conduct and subsequently subjected to a disciplinary hearing by the first and second respondents. The first and second respondents found him guilty of unprofessionalism. He was consequently restricted to practice medicine in the areas of public health, forensic pathology, and histopathology. Dissatisfied with the decision of the first and second respondents, the applicant approached this court seeking a constitutional declarator against the decision of the first and second respondents on the basis that the decision violates his rights established in terms of Sections 60(1) and 64 of the Constitution.

The application was opposed by the first and second respondents, who raised three points in limine. The third respondent did not oppose the application.  By way of their first point in limine, the first and second respondents argued that the applicant, by omitting the words “of Zimbabwe” in the citation of the first respondent, cited a non-existent entity. Secondly, the first and second respondents argued that the applicant cannot seek to challenge the conduct of the first and second respondents without impugning the law that establishes the assailed conduct. In their last point in limine, the first and second respondents contended that where there are non-constitutional remedies available, the applicant ought to have explored such remedies instead of mounting a constitutional case. This is also called the principle of subsidiarity.

Thus, my responsibility is to make a determination on the issues raised before venturing into the merits of the matter. I will proceed to deal with the last point in limine. Arguing in favour of the doctrine of subsidiarity, Adv Zhuwarara submitted that the applicant ought to have explored appeal procedure outlined in Section 128 of the Health Professions Act [Chapter 27:19] which provides as follows:

“(1)       Any person who is aggrieved by a decision of the Authority—

(a)        in an appeal under section twenty-two; or

(b)        in regard to the registration of a health institution under PART XXI;

may, after notice to the Authority and within three months after being notified of the 	Authority’s decision, appeal to the High Court against the decision․

(2)        On an appeal in terms of subsection (1), the High Court may—

(a)        confirm, vary or set aside the decision appealed against; or

(b)        give such decision in the matter as it considers the Authority ought to have given; 	or

(c)        remit the matter to the Authority for further consideration;

and may make such order as to costs or otherwise as it considers fit:

Provided that the High Court shall not set aside the Authority’s decision solely because of 	any informality in the proceedings of the Authority or of any council or committee whose 	decision was the subject of an appeal to the Authority, if the High Court is satisfied that 	the informality did not embarrass or prejudice the appellant in the conduct of his case․”

The applicant, through his counsel, Prof. Madhuku, argued that the appeal procedure is a less effective mechanism and hence he chose to abandon it.

The principle of subsidiarity has been aptly defined in the case of Zimbabwe Homeless Peoples Federation and Another v Minister of Local Government and National Housing and Others where the court held as follows:

“It is the settled position of our law that where there exist other remedies, a litigant may not approach a court on a constitutional basis and ignore the remedies at his disposal in order to deal with what he perceives to be an infringement of his rights. The principle of subsidiarity, itself part of the doctrine of avoidance, recognizes that there are many disputes of right or interest which do not give rise to a constitutional matter. In this regard in Moyo v Sgt Chacha & Others CCZ 19/17, the Constitutional Court remarked as follows:

“The principle of subsidiarity … states that a litigant who avers that his or her constitutional right has been infringed must rely on legislation enacted to protect that right and may not rely on the underlying constitutional provision directly when bringing action to protect the right, unless he or she wants to attack the constitutional validity or efficacy of the legislation itself.  Norms of greater specificity should be relied upon before resorting to norms of greater abstraction.”

Further, in the case of Stone & Anor v Central Africa Building Society & Ors, Gowora JCC held that:

“48.	The law is settled that where there is a statute or law designed to provide effective redress, litigants must find redress in that law rather than approaching the court pleading a constitutional issue. See Zinyemba v Minister of Land and Rural Resettlement and Anor 2016 (1) ZLR 23 (CC) at 26D-F, South African National Defence Union v Minister of Defence and Others 2007 ZACC 10 (CC), MEC for Education, Kwa-Zulu Natal and Others v Pillay 2008 (1) SA 474 and Chani v Mwayera & Ors supra.

49.	The twin concepts of constitutional avoidance and the principle of subsidiarity are part of our law. In terms thereof where redress can be afforded in subsidiary legislation and without pleading constitutional issues, such remedies must be exhausted before approaching the court on a constitutional premise. See Magurure and 63 Ors v Cargo Carriers International Hauliers (Pvt) Ltd CCZ 15/2016, Majome v Zimbabwe Broadcasting Corporation and Ors 2016 (2) ZLR 27 (CC). In Moyo v Sergeant Chacha & Ors (supra), the Court held that:

“Where the question for determination is whether conduct the legality of which is impugned is consistent with the provisions of a statute, the principle of subsidiarity forbids reliance on the Constitution, the provisions of which would have been given full effect by the statute. The principle of subsidiarity has been explained in the cases of Majome v Zimbabwe Broadcasting Corporation and Ors CCZ 14/2016 and Boniface Magurure and 63 Ors v Cargo Carriers International Hauliers (Pvt) Ltd CCZ 15/2016. It states that a litigant who avers that his or her constitutional right has been infringed must rely on legislation enacted to protect that right and may not rely on the underlying constitutional provision directly when bringing action to protect the right, unless he or she wants to attack the constitutional validity or efficacy of the legislation itself. Norms of greater specificity should be relied upon before resorting to norms of greater abstraction”

It is the averment of the applicant that he withdrew his appeal having encountered some technical impediments. There was no further elaboration of the hiccups. The applicant also affirmed that he no longer has the right of appeal without elucidating how such right was lost.  More particularly, in paragraph 34 of his founding affidavit, the applicant stated that:

“I initially sought to appeal to the High Court but that door is now shut after experiencing countless technical glitches with that legal route. I have since withdrawn whatever may have been pending in the   High Court. I no longer have any right of appeal to the High Court.”

In the absence of further amplification, one wonders why the appeal procedure was abandoned in favour of the constitutional remedy which is more rigorous. Prof. Madhuku argued that the constitutional remedy is more effective than the appeal procedure. I do not agree with his submission. The appeal procedure is more effective in my view as it allows the court to directly deal with the issues which arose from the second respondent’s decision. This route has limited challenges.  The applicant will be entitled to further appeal to the Supreme Court if he is not satisfied by the decision of this court. After exhausting all appeal mechanisms, he may then lodge the constitutional application with the Constitutional Court if he is not satisfied by the decision of the final appeal court.

The doctrine of subsidiarity, in my view, is intended to ensure that litigants must pursue other remedies established by other pieces of legislation. It is the intention of the legislature that such pieces of legislation provide more effective remedies which ought to be exhausted before delving into a constitutional remedy.  Further, the principle of subsidiarity ensures that the Constitutional Court does not have unnecessary backlog established by cases which ought to have been heard by lower courts in terms of other pieces of legislation. In the case of Boniface Magurure and 63 Ors v Cargo Carriers International Hauliers (Pvt) Ltd, the court held that:

“The principle of subsidiarity is based on the concept of one-system-of-law. Whilst the Constitution is the supreme law of the land it is not separate from the rest of the laws. The principles of constitutional consistency and validity underscore the fact that the Constitution sets the standard with which every other law authorised by it must conform.  The Constitution lays out basic rights and it is up to legislation to give effect to them.  This is the nature of the symbiotic relationship between the Constitution and legislation. The legal system is one, wholesome and indivisible.  As was put in Gcaba v Minister for Safety and Security and Others 2010 (1) SA 238 (CC):

‘The constitutional and legal order is one coherent system for the protection of rights and the resolution of disputes.’”

It was also observed, in the case of Moyo v SGT Chacha and Ors, that:

“Under a single legal system, laws are enacted to give effect to the Constitution. A remedy that is consistent with the Constitution serves the purposes of the Constitution when it is used in accordance with the provisions of the law by which it is established. Under our criminal justice system, the Magistrate’s Court is an integral part of the mechanism prescribed by the Constitution for the protection and enforcement of fundamental rights of persons arrested on allegations of having committed or committing criminal offences.”

Prof. Madhuku argued that the principle of subsidiarity can only arise where the norm of greater specificity and norm of greater obstruction arise. He referred the court to the case of Zinyemba v Minister of Lands and Rural Resettlement and Anor, where the Constitutional Court held that:

“Two principles discourage reliance on the constitutional rights to administrative justice. The first is the principle of avoidance which dictates that remedies should be found in legislation before resorting to constitutional remedies. The second principle is one of subsidiarity which holds that norms of greater specificity should be relied on before resorting to norms of greater abstraction.”

Prof Madhuku submitted that the Health Professions Act does not protect the freedom of conscience established in terms of section 60 of the Constitution. He further argued that the alternative relief of appeal available in terms of section 128 of the Health Professions Act is no longer available. He also referred the court to section 85(2) of the Constitution which provides that:

“The fact that a person has contravened a law does not debar them from approaching a court for relief under subsection (1).”

Motivating his argument in terms of section 85 of the Constitution, Prof. Madhuku contended that the applicant’s access to courts ought not to be curtailed by his failure to exploit available remedies.

In my view, Section 128 of the Health Professions Act provides a more comprehensive and specific remedy than the constitutional route adopted by the applicant. There is nothing that prevents the appeal authority to make a determination of how the medical practitioner ought to exercise his religion within his or her medical profession with regard being had to the established ethics of the medical profession. The applicant, in my opinion, was fully aware that the appeal route proves to be a more effective remedy. In my view, this is why he, at one time, attempted to pursue it. The reason for his abandonment of the appeal mechanism remains a mystery.

It is evident that when our courts defined the principle of subsidiarity, they were alive to the provisions of section 85(2) of the Constitution relied upon by Prof. Madhuku to argue against the principle of subsidiarity. In my view, section 85(2) of the Constitution cannot override the principle of subsidiarity.

In light of this, I am of the view that the point in limine of subsidiarity is merited.  The Applicant ought to have exhausted the appeal procedure before resorting to the constitutional remedy. Thus, the present application was prematurely instituted before exhausting other legal remedies. For this reason, the application must be struck from the roll to allow the applicant to pursue other remedies. Having reached this conclusion, there is no need for me to make a determination on the remaining points in limine.

On the question of costs, this is a constitutional matter which does have a bearing on the public interest. An order that there shall be no order as to costs is appropriate in the circumstances. 	Resultantly, it is ordered as follows:

The application be and is hereby struck from the roll with no order as to costs.

Deme J: …………………………………………………………

Mhaka Attorneys, applicant’s legal practitioners

Scanlen and Holderness, 1st - 2nd respondent’s legal practitioners