UNIVERSITY OF ZIMBABWE

FACULTY OF LAW

AN ANALYSIS OF THE PRACTICE AND PROCEDURE FOR REFFERAL OF

CONSTITUTIONAL MATTERS TO THE CONSTITUTIONAL COURT IN TERMS OF
SECTION 175 (4) OF THE CONSTITUTION OF ZIMBABWE, 2013.

BY

METHOD NDLOVU

DISSERTATION SUBMITTED IN PARTIAL FULFILMENT OF THE

REQUIREMENTS OF A MASTERS DEGREE IN LAW (LLM)

SUPERVISED BY

DR T.MUTANGI

THE FACULTY OF LAW

UNIVERSITY OF ZIMBABWE

AUGUST 2020

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“Of what point are written constitutions whose bill of rights for the security of
individual liberty have been written, too often, with the blood of martyrs shed
upon the battlefield and the scaffold, if their limitations and restraints upon
power may be overpassed with impunity by the very agencies created to
appoint and guard, defend and enforce them; and that too, with the sacred
authority of law, not only compelling obedience, but entitled to respect? And
how else can these principles of individual liberty and rights be maintained, if,
when violated, the judicial tribunals are forbidden to force penalties upon
individual offenders, who are the instruments of wrong, wherever they
interpose the shield of the State? The doctrine is not to be tolerated. The
whole frame and scheme of the political institutions of this country, State and
Federal, protest against it. It is the doctrine of absolutism, pure, simple and
naked.”

Per MATHIEWS in Poindexter v Greenhow 114 US 270 (885)

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TABLE OF CASES

1. AFRICA PERSONNEL SERVICES (PTY) LTD V GOVERNMENT OF THE

REPUBLIC OF NAMIBIA AND OTHERS (UNREPORTED) 51/2008)
2. AMAKALI V MINISTER OF PRISONS AND CORRECTIONAL SERVICES
2000 NR 221 (HC)
3. BRUCE AND ANOTHER V FLEECYTEX JOHANNESBURG CC AND
OTHERS 1998 (2) SA 1143 (CC)
4. CAMPUS LAW CLINIC (UKZN) V STANDARD BANK 2006 (6) BCLR 669
(CC)
5. CHIITE & 7 ORS V THE TRUSTEES OF THE LEONARD CHESHIRE
HOMES ZIMBABWE CENTRAL TRUST CCZ 10-17
6. DOUGLAS TOGARASEI MWONZORA & ORS V THE STATE CCZ 287-1164
7. DIRECTOR OF PUBLIC PROSECUTIONS, TRANSVAAL V MINISTER OF
JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS 2009 (4)
SA 222
8. EQUITY BANK LIMITED V WEST LINK MBO LIMITED CIVIL APPLICATION
78 OF 2011
9. ERAD SUPPLIERS AND GENERAL CONTRACTORS LIMITED V
NATIONAL CEREALS AND PRODUCE BOARD SUPREME COURT
PETITION NO.5 OF 2012
10. ERIZA MUHALA & ORS V PATRICK. T MUKORERA CCZ 2-18
11. EX PARTE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA IN RE:
CONSTITUTIONALITY OF THE LIQUOR BILL 2000 (1) SA 732 (CC)
12. EX PARTE: ATTORNEY GENERAL IN RE: CORPORAL PUNISHMENT BY
ORGANS OF STATE 1991 NR 178 (SC)
13. DJAMA V GOVERNMENT OF THE REPUBLIC OF NAMIBIA AND OTHERS
1992 NR 37 (HC)
14. FEDERAL CONVENTION OF NAMIBIA V SPEAKER, NATIONAL
ASSEMBLY OF NAMIBIA AND OTHERS 1994 (1) SA 177 (NM).
15. FERREIRA V LEVIN NO 1996 (1) SA 984 (CC)
16. GETACHEW V GOVERNMENT OF THE REPUBLIC OF NAMIBIA (SA
21/2006) [2008] NASC 4 (15 APRIL 2008)

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17. GOVERNMENT OF THE REPUBLIC OF NAMIBIA V SIKUNDA 2002 NR 203
(SC)
18. HELEN MATIASHE V HONOURABLE MAHWE N.O & ANOR CCZ 12-14
19. IN RE FRANCIS GITAU PARSIMEI & OTHERS V NATIONAL ALLIANCE
PARTY AND OTHERS NAIROBI PETITION NO. 356 OF 2012
(UNREPORTED)
20. JENNIFER WILLIAMS V THE STATE CCZ 14-2017
21. JOEL NORMAN SENGERENDO V THE STATE CCZ 11-14
22. KHUMALO V HOLOMISA 2002 (5) SA 401 (CC)
23. LEVI NYAGURA V LAZANI NCUBE & ANOTHER CCZ7-19
24. LYTTON INVESTMENTS (PVT) LTD V STANDARD CHARTERED BANK
ZIMBABWE LTD AND ANOR CCZ 11-18
25. KAUESA V MINISTER OF HOME AFFAIRS AND OTHERS 1995 NR 175
(SC)
26. KAULINGE V MINISTER OF HEALTH AND SOCIAL SERVICES 2006 (1) NR
377 (HC
27. KERRY MCNAMARA ARCHITECTS INC & OTHERS V MINISTER OF
WORKS, TRANSPORT AND COMMUNICATION & OTHERS 2000 NR 1
(HC)
28. KESSL V MINISTRY OF LANDS AND RESETTLEMENT & OTHER AND
TWO SIMILAR CASES, 2009 (1) NR 167 (HC)
29. MAKOTO V T.K. MAHWE N.O. & ANOTHER CCZ-3-20
30. MAGURURE AND ORS V CARGO CARRIERS INTERNATIONAL HAULIERS
(PVT) LTD T/A SABOT CCZ 15-16.
31. MANDIRWHE V MINISTER OF STATE 1986 (1) ZLR
32. MANGWIRO V MINISTER, JUSTICE & LEGAL AFFAIRS HH 172-17
33. MARTIN V ATTORNEY GENERAL AND ANOR 1993 (ZLR) 153 (S)
34. MINISTER OF HEALTH AND SOCIAL SERVICES V LISSE 2006 (2) NR 739
(SC)
35. MUTANDA V PROSECUTOR GENERAL & ORS CCZ 1-017
36. MUTERO AND ANOR V ATTORNEY-GENERAL 2000 (2) ZRL (S)
37. MWONZORA &31 ORS V THE STATE CCZ 9-15

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38. NGAKA MODIRI MOLEMA DISTRICT MUNICIPALITY V CHAIRPERSON,
NORTH WEST PROVINCIAL EXECUTIVE COMMITTEE AND OTHERS
2015 (1) BCLR 72 (CC)
39. NYAGURA V NCUBE N.O. AND ORS CCZ 7-19
40. NYAGUWA V GWINYAYI 1981 ZLR 25.
41. NYAMANDLOVU FARMERS ASSOCIATION V THE MINISTER OF LANDS
AGRICULTURE & RURAL SETTLEMENT HB-19-2003
42. NYATHI V THE STATE CCZ 16-19
43. PAULSEN V SLIP KNOT 2015 (3) SA 479 (CC)
44. PETER ODOUR NGOGE V HON FRANCIS OLE KAPARO AND FIVE
OTHERS SUPREME COURT PETITION NO.2 OF 2012
45. PHARMACEUTICAL MANUFACTURERS ASSOCIATION OF SOUTH
AFRICA AND ANOTHER: IN RE EX PARTE PRESIDENT OF THE
REPUBLIC OF SOUTH AFRICA AND OTHERS 2000 (2) SA 674.
46. President of the Republic of South Africa and Others v South African Rugby
Football Union and Others 2000 (1) SA 1
47. Robert Mwangi v Shepherd Catering Limited and Others Narobi petition no 84
of 2012
48. Rodgers Mema Nzioka v AG Nairobi Petition No 613 of 2006.
49. S v Banga 1995 (2) ZRL 297
50. S v Boesak 2001 (1) SA 912 (CC)
51. S v Cooper and Ors 1977 (3) SA 475
52. S v Chikwinya 1997 (1) ZRL 109 (H) at 115
53. S v Gaweseb 2007 (2) NR 600 (HC)
54. S v Glaco 1993 NR 441
55. S v Kasunganyanga 1998 (2) ZLR 10 (H)
56. S v Katamba 1999 NR 348 (SC)
57. S v Mavharamu 1998 (2) ZLR 341 (H)
58. S v M 2006 (1) NR 200.
59. S v Moses Garoeh 2004 (6) NCLP
60. S v Mbire 1997 (1) ZLR 579 (5)
61. S v Tau 1997 (1) ZLR 93
62. S v Zemburuka 2003 NR 200

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63. Tendai Blessing Mangwiro v The Minister of Justice & Legal Affairs (N.O) HH-
172-17
64. Tomana and Anor v Judicial Service Commission and Anor HH 281-16
65. Transfer Rights Action Campaign and Others v MEC, Local Government and
Housing, Gauteng, and Others (KwaZulu—Natal Law Society and Msunduzi
Municipality as Amici Curiae) 2005 (1) SA 530 (CC)

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DEDICATIONS

To Siyamthanda & Mthabisi Ndlovu. When you pass this stage, then you will have
made me proud as your father. For I achieved in adversity, what of you?

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DECLARATION ON PLAGIARISM

I declare that the work in this think-piece is mine and the sources that were used in
this dissertation were properly acknowledged.

Signed :- ……………………………………………..

METHOD NDLOVU

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ACKNOWLEDGMENTS

I thank the Lord, for giving me life in this Covid-19 era and capacity to finish this
work. I appreciate the guidance and wise counsel that was given to me by my
Supervisor Doctor T Mutangi. The guidance was priceless and spot on.

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ABSTRACT

After nineteen amendments to the Zimbabwean Constitution of 1980, Zimbabwe

came up with ―a people driven‖ Constitution in 2013. The Constitution has been
considered progressive particularly with the now expanded Declaration of rights
which has both horizontal and vertical application per Section 44 of the Constitution.

The 2013 Constitution reserved Section 24 of Constitution of Zimbabwe of 1980

which dealt with referral of matters to the Supreme Court per Section 175(4) of the
Constitution of Zimbabwe 2013. There are however patent differences between the
1980 Constitution and the 2013 Constitution in respect of referral of constitutional
matters to the Constitutional Court. While Section 24 of the erstwhile Constitution
provided for referral of matters to the Supreme Court, Section 175(4) of the
Constitution provides for referral of matters to the Constitution court whose
jurisdiction is espoused in Section 167 of the Constitution.

The availability of referral procedure of matters to the Constitutional Court is a plus in

enforcement of human rights at least in theory. However, there have been
challenges as regards to the utilisation of that procedure in seeking to enjoy
available constitutional remedies. The Constitutional Court has adopted a capricious
approach in constructing the procedure as it is loath to entertain such litigants. This
has thus necessitated the writer to assess the practice and procedure which the
Constitutional Court of Zimbabwe has adopted in dealing with referrals.

This entails checking what the law is, how the Constitutional Court has interpreted it
and the challenges that are presented by the procedure if any. Comparison will be
made with the approach adopted in South Africa, Kenya and Namibia‘s ways of
protecting fundamental constitutional rights through the medium of a Constitutional
Court or otherwise the court with the jurisdiction to hear Constitutional matters in a
particular jurisdiction.

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Table of Contents

GENERAL INTRODUCTION, BACKGROUND AND CONTEXT OF THE STUDY 5

INTRODUCTION 5

SYNOPSIS OF ZIMBABWE’S CONSTITUTIONAL HISTORY 12

CONCEPTUAL FRAMEWORK 13

PROBLEM STATEMENT AND JUSTIFICATION OF STUDY 14

RESEARCH ASSUMPTIONS 14

RESEARCH QUESTIONS 15

LITERATURE REVIEW 15

RESEARCH METHODOLOGY 16

LIMITATIONS 18

THE HISTORY & THE LEGAL REGIME GOVERNING CONSTITUTIONAL

REFERALS IN ZIMBABWE 19

INTRODUCTION 19

DEFINITION AND HISTORY OF CONSTITUTIONAL REFERRALS 19

THE LAW ON REFERRALS IN ZIMBABWE 20

THE CONSTRUCTION OF SECTION 175(4) 22

CONSTITUTIONAL COURT RULES AND THEIR SCOPE 25

MAGISTRATES COURT RULES 27

PROCEDURE IN CONSTITUTIONAL REFERRALS BY THE PARTIES 27

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CONSTITUTIONAL REFERRALS AT THE INSTANCE OF PRESIDING OFFICERS
34

CONCLUSION 35

CHALLENGES IN RELATION TO CONSTITUTIONAL REFERRALS IN

ZIMBABWE 36

INTRODUCTION 36

CHALLENGES EMANATING FROM CONSTITUTIONAL REFERRALS 36

WRONGFUL REFUSAL TO REFER MATTERS 36

IMPROPER REFERRAL OF MATTERS 39

PROCEDURAL AND SUBSTANTIVE DEFICIENCIES OF APPLICATIONS

REFERRED TO THE CONSTITUTIONAL COURT 41

LACK OF INHERENT JURISDICTION BY MAGISTRATES TO DEAL WITH

CONSTITUTIONAL ISSUES 42

LENGTH OF TIME TAKEN TO HEAR REFERRALS 43

PRESIDING OFFICERS FAILING TO MERO MOTU REFER CONSTITUTIONAL

MATTERS 45

PASSIVE CONSTITUTIONAL COURT BENCH 45

LACK OF UNIFORM RULES ON CONSTITUTIONAL REFERRALS 46

CONCLUSION 46

INTRODUCTION 48

STANDING – WHO CAN ACCESS THE CC 49

GUIDING PRINCIPLES 56

INTERESTS OF JUSTICE 56

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RIPENESS 56

MOOTNESS 57

CONCLUSION 57

NAMIBIA VERSUS ZIMBABWE 58

HISTORY 59

THE STRUCTURE OF COURTS IN NAMIBIA 61

THE LOWER COURTS 61

THE HIGH COURT 62

JURISDICTION OF THE HIGH COURT 63

JURISDICTION TO HEAR CONSTITUTIONALLY- RELATED MATTERS 63

THE SUPREME COURT 65

APPELLANT JURISDICTION OF THE SUPREME COURT 66

SUPREME COURT AS COURT OF FIRST INSTANCE. 67

REVIEW POWERS OF THE SUPREME COURT 69

UPHOLDING FUNDAMENTAL RIGHTS 71

ADMINISTRATIVE JUSTICE AND CONSTITUTIONALISM 72

DETERMINATIONS ON CUSTOMARY LAW 73

CONCLUSION 74

KENYA 74

THE CONSTITUTIONAL COURT IN KENYA 75

WHY THERE IS NO CONSTITUTIONAL COURT 76

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CASE LAW ILLUSTRATING THE HIGH COURT’S CONSTITUTIONAL
JURISDICTION 77

REQUIREMENTS FOR BRINGING A CONSTITUTIONAL MATTER 78

COMPARISON TO OTHER JURISDICTIONS 79

BIBLIOGRAPHY 82

CHAPTER ONE

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GENERAL INTRODUCTION, BACKGROUND AND CONTEXT OF THE STUDY

INTRODUCTION

If one looks at the history of nations that maximized the virtues that we associate
with democracy, you will notice that what came first was constitutionality, rule of law
and the separation of powers. Democracy always came last.1The Constitution is the
supreme law of the land.2 Constitutionalism is the order of the day in most nations of
the world. Separation of powers and the rule of law are the shining phrases across
the globe.

The notion of a limited government augment and cement constitutional supremacy

has significantly lead to the proliferation of judicial organs mandated with ensuring
that constitutional provisions should be given effect to. Almost all constitutions
across the globe empower courts to deal with constitutional matters and also
establish a special Constitutional Court mandated to deal with all constitutional
matters.

Zimbabwe has a rich constitutional jurisprudence which emanates mainly from the
Constitution of Zimbabwe, 1980 (as amended) and the Zimbabwean Constitution
2013 together with the interpretations given thereto by the courts and academic
writers in this and other neighbouring jurisdiction.

It is inexcusable for legal practitioners, law teachers, human rights practitioners and
students of constitutional law not to appreciate the law as regards to the referral of
matters to the Constitutional Court.

The court system of Zimbabwe is simple and easy to comprehend. At the lowest are
the local courts which are adjudicated over by the traditional leaders. From there
follows the Magistrates Courts3 which comprises of the Maintenance Court and the

1 nd
Stu Woolman and Michael Bishop Constitutional law of South Africa, 2 edition 2013
2
Section 2 (1) of the Constitution of Zimbabwe 2013
3
Established in terms of the Magistrates Court ,[Act, 7:10]

5
Small Claims Court. In the hierarchy of courts we have the High Court4 next, which
has the civil, criminal and commercial divisions inter alia.

From the High Court there is the Supreme Court5. At the apex, there is the
Constitutional Court. It must also be mentioned that there is also the Labour Court
which deals absolutely with labour or employment issues. In the hierarchy it does not
find a special place but it is lower than the High Court.

This paper will deliberately not deal with the general jurisdiction of the above
mentioned courts. The sole and main focus in this study is on the constitutional
jurisdiction of the above mentioned courts and referral of constitutional issues to the
Constitutional Court. Jurisdiction refers to the power and competence of a court to
hear a matter and make a determination which is binding on the parties before it.6

The Zimbabwean courts as already indicated have different powers as regards to

adjudication of constitutional matters. First the Constitutional Court is the apex court
and the final arbiter as regards to Constitutional matters. It is established in terms of
Section 166 of the Constitution. The jurisdiction of the Constitutional Court is
provided for in Section 167 of the constitution and it is twofold. Firstly, there is
general jurisdiction which relates to its power to hear any constitutional issues.
Secondly, it has what is called exclusive jurisdiction emanating from Section 167(2)
of the Constitution. It has exclusive jurisdiction as regards to election of the
president, constitutionality of proposed legislation or suitability of a person from
holding the office of the Vice President inter alia.

Section 167(1) (b) of the Constitution makes it clear that the jurisdiction of the Court
is limited to deciding only constitutional matters and issues connected with decisions
on constitutional matters. It is the highest court in all constitutional matters. It is well
established in case law7, that :-

“The Court is a specialised institution, specifically constituted as a

Constitutional Court with the narrow jurisdiction of hearing and determining

4
Established in terms of the High Court Act, [Chapter 7: 06]
5
Established in terms of the Supreme Court Act, [Chapter 7:13]
6
Nyaguwa v Gwinyayi 1981 ZLR 25.
7
Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CCZ 11-18 pg9

6
 constitutional matters only. It is the supreme guardian of the Constitution and
uses the text of the Constitution as its yardstick to assure its true narrative
force. It uses constitutional review predominantly, albeit not exclusively, in the
exercise of its jurisdiction.”

There are various ways upon which the Constitutional Court can adjudicate over
matters. Firstly, it can be through an appeal from the Supreme Court. Secondly, it
can be an application for direct access. Thirdly, it can be through referral of matters
in terms of Section 175(4) of the Constitution from various forums like the High
Court, Magistrates Court and Labour Court inter alia. This paper is concerned with
the aspect of referral of matters to the Constitutional Court. In particular this paper
will evaluate the approach that the Zimbabwean Constitutional Court has adopted
and whether such approach gives force and effect to the Declaration of Rights
(Chapter 4 of the Constitution).

Section 175(4) of the Constitution provides a framework for referral to the

Constitutional Court of constitutional matters that arises in any proceedings before a
subordinate court. It should be noted that s 175(4) of the Constitution is worded in
almost the same way as its precursor in s 24(2) of the Lancaster House Constitution.
Section 24 (2) of the Lancaster House Constitution provided that: ―(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.

It is apposite to state that the High Court of Zimbabwe now has jurisdiction to
determine Constitutional issues. This is by operation of Section 171 (1) (c) of the
Constitution. This is unlike in the older days or prior to the Constitution of Zimbabwe
2013. There was some debate in this jurisdiction on whether prior to 2013, the High
Court had constitutional jurisdiction. A similar provision to Section 24(4) which
pertains to the Supreme Court was not made in respect of the High Court. In the
circumstances, did the High Court have jurisdiction to determine a constitutional
matter? GILLESPIEJ remarked it did as seen in the matter of S v Chikwinya8 and in

8
1997(1) ZLR 109(H) at 115

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S v Mavharamu9 as per his Lordship DEVITTIE J. In S v Kasunganyanga10 , the
learned judge remarked as follows:-

“I am satisfied that where rights enshrined in the Constitution are breached,

this court has jurisdiction to grant an appropriate remedy. In my view, the
provisions of the Constitution which provide for reference to the Supreme
Court of constitutional questions merely provide a procedural mechanism
whereby constitutional matters may be raised by the lower courts for decision
by the Supreme Court. The inherent jurisdiction of the High Court is not
thereby affected.”

This interpretation of Section 24(4) by the two learned judges appeared to have
been overruled by the Supreme Court in S v Mbire,11 where it was held by GUBBAY
CJ, in a dictum, that stated on page 581 B as follows;

“It is only the Supreme Court that is empowered to make such an order under
the authority of Section 24(4) of the Constitution when the application or
referral comes before it pursuant to subSection (1) or (2)”

NDOU J (as he then was) had occasioned to comment on Section 24 of the

Lancaster House Constitution in Nyamandlovu Farmers Associationv The
Minister of Lands, Agriculture & Rural Resettlement12. It was sagaciously stated
that: ―In casu, the question is whether the Supreme Court has exclusive
jurisdiction to make Section 24 orders. Simply put as follows; does a High Court
have concurrent jurisdiction to give an order in terms of Section 24 by virtue of its
inherent jurisdiction? By way of comparison, in South Africa only the Constitutional
Court has the power to declare Acts of Parliament unconstitutional and accordingly
invalid. In our case it is clear that our Supreme Court sits as a Constitutional
Court. When it does so, its composition is prescribed. It is only when it is so
composed that it is in a position to deal with constitutional matters. In my view
reference to the Supreme Court in Section 24 is consistent with the latter sitting as a
Constitutional Court. With respect to learned judges GILLESPIE and DEVITTIE‘s

9
1998(2) ZLR 341(H) at 351
10
1998 (2) ZLR 10 (H) at 13.
11
1997(1) ZLR 579 (5) at 581B.
12
HB-19-2003

8
reference to the Supreme Court alone in Section 24 is a deliberate limitation of the
inherent jurisdiction of the High Court. It is consistent with making constitutional
matters the domain of the Supreme Court sitting as a Constitutional Court. Section
24 does not mention the Supreme Court ex abundante cautela. It does so by
design as it is not a procedural mechanism. The jurisdiction of this court in
constitutional matters is deliberately quoted thereby. This is consistent with the
creation of a special dispensation to deal with constitutional matters an evinced by
the fact that these matters are considered so fundamental that they can be
considered by the highest court in the country exercise original jurisdiction.

The above debate is now irrelevant as Section 171 (1) (c) of the Constitution settles
the issue. The High Court has jurisdiction to hear constitutionally related matters,
however its order has to be confirmed by the Constitutional Court to have effect. This
is in accordance with Section 175(1) of the Constitution. See also Tendai Blessing
Mangwiro V The Minister Of Justice & Legal Affairs (N.O.)13

When the Constitutional Court is ceased with a matter referred to it, it may order one
or more of the constitutional remedies. Constitutional remedies14 for the effective
protection, promotion, enforcement and respect of human rights are forward looking,
structural and community oriented. Constitutional remedies unlike common law
remedies should not be backward looking and individualistic. Constitutional remedies
vary from one jurisdiction to another due to various factors; however the thematic
concern that constitutional remedies should be forward looking, structural and
community oriented is of paramount importance and is key. Constitutional remedies
include declarations of invalidity of legislation, severance, reading- in, reading down,
structural interdicts, constitutional damages just to mention but a handful as the
courts in most constitutional democracies are given leeway to forge new remedies

13
Hh-172-17.
14
Constitutional remedies refers to remedies for violation of constitutional rights and constitutional provisions
meant to vindicate the Constitution. Forward looking in constitutional litigation can be seen by the way
constitutional remedies are futuristic in nature. Structural can be seen by how constitutional remedies seek to
deal with the root cause of constitutional violations. Community oriented can be seen by how constitutional
remedies go beyond the individual litigants. Constitutional referrals this refers to the constitutional procedural
remedy of referring a constitutional issue to the Constitutional Court or the highest court of the land which deals
with constitutional issues. This procedure can be seen in common law jurisdictions such as Kenya ,Ethiopia and
South Africa.

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on a case by case basis. This goes to show that Constitutional remedies are not
static but they continuously develop to meet the needs of the people and to uphold
fundamentally protected rights as envisaged in the Constitution of Zimbabwe.

Most countries have specialists‘ courts such as the Constitutional Court15 which are
mandated to deal with constitutional matters. The ideas and legal theories of Kelsen
and his model of the court as a negative legislator16 have influenced the design of
specialised Constitutional Courts in the Western world. Kelsen in accordance with
his positivist‘s jurisprudence believed in a strict hierarchy of laws and that ordinary
judges should apply only law that is legislated by the parliament. To effectively
restrain the legislature and ensure the compatibility of law with the higher normative
order of the Constitution, Kelsen believed that a special extrajudicial organ was
necessary. The Kelsesian model establishes a centralised body outside of the
structure of the conventional judiciary to exercise constitutional review and act as the
guarantor of the constitutional order. This body typically called a Constitutional Court
operates as a negative legislator because it has the power to reject but not propose
legislation.

Constitutional referrals by judges or other presiding officers raise issues concerning

the relationship between the Constitutional Court and the ordinary courts.
Constitutional Courts do not adjudicate in the ordinary civil or criminal matters.
Normally the presiding officers frame and refer a matter to the Constitutional Court.
The presiding officer ought to be satisfied that the constitutional issue is material and
that there is real doubt as to the constitutionality of the law or decision involved. The
Constitutional Court will then decide the question and the matter is then returned to
the court from which it came. The presiding officer will then decide the civil or
criminal matter at hand by applying the judgment of the Constitutional Court. In such
cases, the Constitution or the law creating the Constitutional Court will specify the
procedure and powers involved. Thus, if the validity of any legislation is challenged

15
A Constitutional Court is a special type of court that exercises only the power of constitutional review. It is
defined by Alec Stone Sweet as a constitutionally established independent organ of the state whose central
purpose is to defend the normative superiority of constitutional law with the juridical order. In othe r words its role
is to review laws, and usually also executive acts and decisions, to decide whether they are constitutionally valid
and provide a remedy in cases where they are not. It exercises this power exclusively, no other court or body can
engage in constitutional review. Courts of this kind exist in about 85 countries around the world thus a majority of
countries have a system of constitutional review
16
The notion of a negative legislator is based on the idea that the court expels legislation from the system and
therefore shares legislative power with the parliament

10
in any court which has no jurisdiction to deal with such challenge, the presiding
officer must either deal with the matter with the assumption that the enactment
complained of is valid or refer the matter to the Constitutional Court.

In terms of s174 (4) of the Constitution a constitutional remedy of constitutional

referrals is provided. Just like any other constitutional remedy, constitutional referrals
should be forward looking, structural and community oriented. It should be noted that
s 175(4) of the Constitution is worded in almost the same way as its precursor in s
24(2) of the Lancaster House Constitution.17

The provision in s174 (4) envisages two instances where the court can refer to the
Constitutional Court a constitutional matter that arises during proceedings: The first
is framed as a discretion to the court by the use of the word ‗may.‘ It relates to
instances where upon realisation that a constitutional issue has arisen and that its
resolution has a bearing on the disposition of the issues at hand, the subordinate
court mero motu decides to refer the constitutional question to the Constitutional
Court. The second instance is mandatory to the person presiding over the lower
court. It relates to where a party to the proceedings requests a referral of the
constitutional matter. The presiding officer has no discretion in that case. He/she can
only refuse to refer the issue if he/she considers the request to be merely frivolous or
vexatious or both.

The purpose of the above mentioned provision it so to provide an assessment of the

legal regime in relation to referrals of matters to the Constitutional Court and to
critically cross examine whether constitutional referrals are indeed forward looking,
structural or community oriented.

17
The minute difference is that in the old s 24 (2) and the new s 175 (4) is that in the old Section, the referral
necessarily had to be based on the alleged infringement of a provision of the declaration of rights, the new
Section does not limit the scope of the constitutional matter to declaration of rights but encompasses a wider
spectrum of constitutional matters as defined under s 332 of the Constitution. As an example, during crimin al
proceedings being conducted by a police officer who is on secondment to the National Prosecuting Authority, a
person may allege that the prosecution by the police officer is unconstitutional on the basis of s 208 (4) of the
Constitution. That would be a constitutional issue which is not based on the Bill of Rights. The case of Zimbabwe
Law Officers Association and Anor v National Prosecuting Authority and Four Ors CCZ 1/19 is an application
challenging the constitutionality of having police prosecutors m anning civilian courts. It came as a direct
application in terms of s 85 of the Constitution but it could have arisen in proceedings in the lower court and could
have been referred to the Constitutional Court.

11
SYNOPSIS OF ZIMBABWE’S CONSTITUTIONAL HISTORY
The development of the Zimbabwean constitutional history has interesting aspects.
Historically, Zimbabwe‘s constitutionalism can be traced to the years 1923 and 1961
when colonialism was formalized. Upon attaining independence, a Constitution was
drafted which reflected on the ideals and values of the Zimbabweans in the backdrop
of its colonial history. Philosophically, Zimbabwean constitutionalism is explained by
the several amendments to the 1980 Constitution. The several amendments showed
how Zimbabwe was reimagining the relationship between government and the
individual citizen. Some of the amendments before the turn of the millennium gave
impetus to the need for a home-grown Constitution.

A Constitutional Commission Draft Constitution was rejected in 2000. The National

Constitutional Assembly herein referred to as the ‗NCA‘ campaigned for a ‗No Vote‘
because the Draft was largely seen as more of a political document than a people‘s
charter. The NCA was to become an important player in the Constitutional-making
process as it emphasized on the need to have a people-driven constitutional
process.

Zimbabwe then embarked on a constitutional-making process that was largely

politically driven by The Zimbabwe African National Union – Patriotic Front herein
referred to as ‗ZANU PF‘ and the two Movement for Democratic Change herein
referred to as ‘MDC’ formations, MDC-Tsvangirai and MDC-Ncube/Mutambara. The
three political parties were part of the Government of National Unity that existed
between 2009 and 2013. Just like in 2000 when a referendum was conducted,
Zimbabweans also voted for the adoption of the Constitution. Over 94% voted for the
adoption of the Constitution although some civil society organizations such as the
NCA (then now a political party) campaigned for a ‗No vote‘.

The 2013 constitution which was passed through a popular majority brought
significant changes. Chief of all, the Bill of Rights18 was created. Horizontal and
vertical application19 of the constitution was also set into motion. It also created a
specialised court that is the Constitutional Court which would have exclusive

18
Chapter 4 of the 2013 Constitution
19
The provisions imposed by this constitution are binding on every person natural or juristic and all executive,
legislative and judicial institutions and agencies of government at every level and must be fulfilled by them

12
jurisdiction in all constitutional matters. This was a radical departure from the positi on
in the previous constitution wherein the Supreme Court was the one which
determined all constitutional matters. The main motivation in establishing a
Constitutional Court is to create a strong and specialized judicial-type body capable
of enforcing a new constitution or a new constitutional deal

CONCEPTUAL FRAMEWORK
Constitutional referrals just like all constitutional remedies are meant to vindicate the
constitution. Once a right that is enshrined in the Constitution has been infringed the
greatest harm is not inflicted upon the individuals but the Constitution itself. It is
submitted that the Constitution in a constitutional democracy ought to be portrayed
as a living skin and not a rock. Thus constitutional referrals are procedural
mechanisms meant to vindicate and protect the Constitution. In a constitutional
referral case the Constitutional Court is being called upon to come to the rescue of
the constitution by determining the constitutional issue raised.

Constitutional referrals entrench the principle of constitutional dominance. In a

jurisdiction where the constitution is the supreme law and a Constitutional Court is
established it is peremptory that constitutional issues ought to be determined by the
highest court of the land as far as constitutional issues are concerned. Thus
constitutional issues which would have been raised in the courts should be
determined by the Constitutional Court. In terms of Section 175(4) of the constitution
and Rule 42 of the Constitutional Court Rules the presiding officer in any court may
mero motu refer the matter to the Constitutional Court thus cumulatively entrenching
the principle of constitutional dominance

Constitutional referrals also facilitate direct access to the Constitutional Court for
litigants already involved in litigation thus constitutional referrals allow direct access
to the Constitutional Court. It is submitted that in the course of proceedings litigants
cannot invoke Section 85 of the Constitution automatically hence Section 175(4)
allows litigants to have recourse through constitutional referrals. In a scenario where
a constitutional referral in a court has been dismissed an aggrieved applicant is
empowered to directly appeal to the Constitutional Court so that the Constitutional
Court can determine the constitutional issue.

13
PROBLEM STATEMENT AND JUSTIFICATION OF STUDY
The mischief behind the procedure relating to constitutional referrals is meant to
provide a swift remedy to any infringement of rights. It is disappointing to note that it
appears that this remedy merely exists on paper. Very few cases which are referred
to the Constitutional Court are successful. Thus it is a significant challenge that a
constitutional remedy which is provided in terms of the constitution is not being fully
utilised so that there is no infringement of rights.

This paper seeks to interrogate the challenges if any in the referral system of matters
to the Constitutional Court. It will canvass the reasons that have contributed to the
failure of the system in a bid to protect human rights which are protected for in the
declaration of rights. The Constitutional Court seems to have adopted and strictly so
the principles of avoidance, subsidiarity, mootness and ripeness against the spirit of
the Constitution itself. It seems there is little if any purpose is being achieved by the
referral procedure of matters to the Constitutional Court. The Constitutional Court
has adopted a strictly technical approach in dealing with referred matters from
subordinate courts. It has sometimes refused to entertain a referral on the basis that
the question for referral is not properly couched and sometimes on the basis that the
litigant would have used a wrong form. The other problem that is apparent and which
requires interrogation as shall be done in this paper is that the courts in Zimbabwe
have not referred matters mero motu to the Constitutional Court yet the Constitution
per Section 174 (5) allows them to do so. Many constitutional issues in this
jurisdiction are political in character hence the loathness of the Constitutional Court
to deal with them thus putting in issue the independence of the judiciary.

RESEARCH ASSUMPTIONS
1. The legal regime governing constitutional referrals in Zimbabwe is adequate.
2. There is tension between the Constitutional Court and other ordinary courts.
3. The purpose of constitutional referrals as constitutional remedies is not being
realised.
4. The attitude and approach of the Constitutional Court defeats the whole
purpose of referrals.

14
RESEARCH QUESTIONS
To enrich the constitutional and jurisprudential data on the Legal regime on
constitutional referrals the research questions which this thesis seeks to answer are
structured as follows:

1. What are constitutional referrals?

2. What is the history of constitutional referrals?
3. What are the general legal framework governing constitutional referrals?
4. What are the problems affecting the constitutional referral procedure
5. What are the best practices in other similar jurisdictions
6. What recommendations can be made to curb the problems in relation to
constitutional referrals?

LITERATURE REVIEW
As highlighted above Section 175(4) of the Constitution provides a framework for
referrals to the Constitutional Court of constitutional matters that arise in any
proceedings before a subordinate court. The previous constitution provided for
constitutional referrals through s24 of the Constitution. In Zimbabwe the procedure of
constitutional referrals is two-fold as can be seen by how a court on its own can refer
a matter to the Constitutional Court and also how private parties can request that the
presiding officer in any ordinary court refer a matter to the Constitutional Court.

In diffused systems such as the United States, the issue of constitutional referrals is
unknown. This is so because all courts have jurisdiction to determine constitutional
issues. There is no need to refer a constitutional issue to any court. In the event that
a constitutional issue is raised during proceedings in any court that court can
determine such a constitutional issue and the decision unless suspended through an
appeal will remain binding.20

On the other hand in concentrated systems the situation is different. The power to
pass judgments on the constitutionality of a law or conduct is vested exclusively in a
separate body whose sole duty is to act as a constitutional forum. Such an organ
could be a Constitutional Court, a Supreme Court or a special separate body such as

20
H. Schwartz, ―The New East European Constitutional Courts‖, 13 Michigan Journal of International law (1992):
741, 743

15
the French Conseil Constitutionnel. The designations greatly vary from one
country to another: Constitutional Court, constitutional tribunal and constitutional
council are a few of the common names. It is generally a sui generis court as its
constitutional position is positioned ‗within the state organization opposite the other,
more ―traditional‖ state powers – legislative, executive and judiciary – and therefore
does not come under the constitutional title that relates to the latter.21

There also exist other third systems that are the mixed system. This system
fundamentally borrows from the diffused and concentrated systems. In mixed
systems ordinary courts and a specialised Constitutional Court or other tribunal all
have constitutional adjudicating powers. Just as in the American system of diffuse
judicial review, any party to a civil or criminal proceedings or the court which is a
forum thereof can raise the question of constitutionality of legislative or executive
acts, and courts of all levels are empowered to rule on the constitutionality of the
challenged law, decision or Act. However, a party to a concrete judicial proceeding
can appeal to the Constitutional Court (or similar tribunals) to reverse a decision of
the regular court upholding or rejecting the (un)constitutionality of a law the content
of which potentially affects the outcome of the concrete litigation. Alternatively, a
sitting judge can refer, ex officio, the constitutional issue to the Constitutional Court
for the latter‘s interpretive guidance, pending which the proceedings before the court
stays. Only the decision of the Constitutional Court has erga omnes effects.

From this it can be seen that the procedure in Zimbabwe in relation to constitutional
referrals falls under the mixed category to a greater extent. This can be seen by the
way our constitution allows parties in a suit to refer the matter to the Constitutional
Court or by the way the court can mero muto refer a matter with a constitutional
issue to the Constitutional Court.

RESEARCH METHODOLOGY
The journey to intellectual discovery regarding the legal governing laws relating to
constitutional referrals that will largely be informed by the doctrinal legal research

21
A. Alen et al.,‗The Relations Between the Constitutional Court and the Other National Courts, Including the
Interference in this Area of the Action of the European Courts‘, 23(8–12) Human Rights Law Journal (2002): 304,
308

16
methods, which is essentially a ‗research in law‘ or ‗research in black letter of law‘.
This methodology would be utilised in Chapters 2 and 3. To some extent, the first
chapter of this thesis will have a fusion of non-doctrinal legal research whose
emphasis is therefore; ‗research about law‘ or ‗socio-legal research,‘ 22 since the
subject of constitutionalism is fundamentally leaning to social matters. Chapter 4 will
contain a comparative legal research methodology while Chapter 5 will be a
combination of socio legal and doctrinal undertaking for findings, evaluation,
recommendations and conclusions.

Doctrinal and non-doctrinal legal research is the two broad legal research methods
available to a legal scholar.23 Doctrinal legal research is defined as:

―research into legal doctrines through analysis of statutory provisions and

cases by the application of power of reasoning.24 On the other hand, non-
doctrinal research is defined as research into the relationship of law with other
behavioural sciences‖25

Doctrinal legal research is therefore, ‗research in law‘ while non-doctrinal legal

research is, ‗research about law.‘ Doctrinal legal research involves, ―a systematic
exposition, analysis and critical evaluation of legal rules, doctrines or concepts, their
conceptual bases and interrelationship.‖26

Doctrinal legal research,27 comprises ―in-depth analysis of the legal doctrine with its
development process and legal reasoning. This type of research helps the
researcher to, ―analyse, criticise, sift and synthesise‘ the law. 28 Doctrinal legal
research is about what the prevailing state of legal doctrine, legal rules or legal
principles are. It gives emphasis on analysis of legal rules, principles or doctrines

22
Vibhute, K. and Aynaem, F. (2009) Legal research methods at available at chilot. word press. com accessed 8
January 2020 p.44
23
Ibid
24
Ibid
25
Ibid
26
Ibid
27
Doctrinal legal research has been nicknamed ‗armchair research‘ or ‗basic or fundamental research‘, while non
doctrinal research focuses on other sources other than law and is also known as socio-legal research or
sociology of law available from chilot.wordpress.com p.71 accessed 31 December 2019
28
Birks, P. ―The Academic and the Practitioner‖, (1998) 18 Legal Studies, 377 p.399

17
while non-doctrinal legal research gives prominence to relationship of law with
people, social values and or social institutions.29

In Chapter 2, this thesis shall stick closer to the Constitution of Zimbabwe 30,
legislation (statutes)31 and to leading judicial decisions. Secondary data shall
therefore be used in the form of the data already available, as collected through desk
research. In-depth examination of different secondary data such as journals, the
internet, textbooks and other academically accepted sources shall be done to further
understand the nature of issues surrounding the human right to water. In terms of
primary sources, focus will be on published academic and professional legal
periodicals. A comparative analysis of how Constitutional issues are dealt with in
other jurisdictions shall be adopted,32 in Chapter 4 by comparing South African and
Zimbabwean laws. A comparative approach will be useful in exhibiting the lessons
that can be learnt from each jurisdiction‘s failures and achievements.

Limitations
This dissertation will be limited by the lack of comprehensive case law dealing with
the issue of constitutional referrals. The Constitutional Court under the 2013
constitution has not been dealing decisively with the issue of constitutional referrals.
The Supreme Court sitting as the Constitutional Court under the previous
constitution was more successful in dealing with the subject matter. Most cases
referred from the lower courts would not have had been properly referred. In most
cases if constitutional matters are raised in the lower courts the presiding officers are
slow to refer such cases to the Constitutional Court. The issue of frivolous and
vexatious has not been sufficiently canvassed.

CHAPTER TWO
29
Vibhute, K. and Aynaem, F. p.44
30
Constitution of Zimbabwe Amendment (Number 20) Act 2013
31
Acts of Parliament including but not limited to The Water Act [Chapter 20:25] (1998) and The Environment
Management Act [Chapter 20:27)
32
Vibhute, K. and Aynaem, F. p.72

18
THE HISTORY & THE LEGAL REGIME GOVERNING CONSTITUTIONAL
REFERALS IN ZIMBABWE

INTRODUCTION
As was stated in the introduction this chapter will be focused on bringing out the
legal regime governing constitutional referrals in Zimbabwe. In this chapter the
constitutional provisions regulating referral of matters will be stated. An analysis
thereafter will be made. Rules of the Constitutional Court relating to constitutional
reference will also be related to as they are the ones that facilitate the referral of
matters. The rules dealing with referrals from the ordinary courts will also be
canvassed. The jurisprudence of the courts in relation to referrals will also be
examined. This will help in showing the approach that has been taken by the CC in
dealing with constitutional referrals. It must be stated from the onset that the CC has
always been guided by the principles of subsidiarity, mootness, ripeness and
avoidance in exercising its referral powers. With this chapter, the attitude and of the
CC will become apparent.

DEFINITION AND HISTORY OF CONSTITUTIONAL REFERRALS

It is apposite that in this chapter, constitutional referrals are to be defined. One

scholar in Ukraine has defined it as, a: ―written referral submitted to the
Constitutional Court of Ukraine with solicitation of recognition of legal act (its certain
provisions) as unconstitutional, on determination of constitutionality of an
international agreement or treaty, or on the necessity of formal interpretation of the
Constitution of Ukraine and the laws of Ukraine as well as on obtaining conclusion
concerning constitutionality of the procedures of investigation and consideration of
the case of removal of the President of Ukraine in accordance with impeachment
procedures.‖33The definition given above adequately defines a constitutional referral.

Simply put a constitutional referral is a procedure available in a legal system, that

allows a subordinate court or quasi-judicial board to refer a constitutional issue to a
specialised court with constitutional jurisdiction. The specialised courts vary across

33
Conference of European Constitutional Courts XIIth Congress, The relations between the Constitutional Courts
and the other national courts, including the interference in this area of the action of the European courts

19
different jurisdictions. In Zimbabwe, it is the Constitutional Court and whereas in
other countries such as Namibia and Kenya the Supreme Court is bequeathed with
such jurisdiction as will be discussed later on in this paper. It is apposite to state that
some countries in Africa have not established Constitutional Courts but that
jurisdiction is exercised by that court. Countries like Zimbabwe and South Africa
have established Constitutional courts. It must be mentioned that Zimbabwe prior to
2013 did not have the Constitutional Court. It is the Supreme Court that used to deal
with constitutional matters.

Constitutional referrals are not a new phenomenon either in this or other

jurisdictions. In Zimbabwe they back date to the Lancaster House Constitution as per
Section 24 of the same. This provision has been preserved by the 2013 constitution
as espoused in Section 175(4) of the Constitution. The referral system used to exist
in South Africa as early as 1994. The 1996 Constitution however changed the nature
of the referrals to the Constitutional Court. The referrals available in South Africa
now include presidential referrals, which entails that the President is empowered to
refer a bill or proposed legislation to the Constitutional Court so as to check is
constitutionality.

The coming in of the referral system is not mutually exclusive with the human rights
theory. The stronger the issue has become, the more legal systems have realised
that there must be a structure whereby an opinion or guidance is always sought in
from a court with specialised jurisdiction.

THE LAW ON REFERRALS IN ZIMBABWE

As already indicated, the law as regards to referral of matters to the Constitutional
Court is largely a constitutional affair. Put differently, the constitution spells out the
law and this is critical considering that the constitution is a sui generis source of law,
per Section 2 of the same. The rules help in defining the law. The various judgments
of the Constitutional Court has helped the legal fraternity to understand what the
provisions of the constitution entails. The correctness of the interpretations given is
otherwise and this shall be dealt with later.

20
Section 175(4) of the Constitution provides a framework for referral to the
Constitutional Court of constitutional matters that arise in any proceedings before a
subordinate court. Section 175(4) of the Constitution stipulates that: ―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 or vexatious.‖ Before relating to this provision, it is apposite to state
that this provision mirrors Section 24 of the Lancaster House Constitution. This
study will be a failure if Section 24 of the Lancaster House Constitution is not related
to. It is dealt with in turn.

Section 24 (2) of the 1980 Constitution provided the same provisions relating to
constitutional referrals. It stated that: If in any proceedings in the High Court or in any
court subordinate to the High Court a 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 if the question is merely frivolous or vexatious.‖

The provision under the previous constitution was only limited to constitutional
referrals in cases where the Declaration of Rights had been infringed. However the
current constitution has a wide provision and is not only limited to the infringement of
the provisions in the Bill of Rights. Despite the difference, it remains that the issue
that is likely to be referred to the Constitutional Court is that which relates to the
Declaration of rights. It must however be stated that a change is progressive in that
not only infringement of rights cases should be referred to the Constitutional Court at
least in theory.

The constitutional provisions envisaged under the Section 175 (4) of the current
constitution and Section 24(2) of the previous constitution provide two instances
where the court can refer to the Constitutional Court a constitutional matter that
arises during proceedings: The first is framed as a discretion to the court by the use
of the word ‗may.‘ It relates to instances where upon realisation that a constitutional
issue has arisen and that its resolution has a bearing on the disposition of the issues
at hand, the subordinate court mero motu decides to refer the constitutional
question to the Constitutional Court.

21
The second instance is mandatory to the person presiding over the lower court. It
relates to where a party to the proceedings requests a referral of the constitutional
matter. The presiding officer has no discretion in that case. He/she can only refuse to
refer the issue if he/she considers the request to be merely frivolous or vexatious or
both.

THE CONSTRUCTION OF SECTION 175(4)

The point of departure in determining how Section 175 (4) has been interpreted is to
define what a constitutional matter is. One does not to look far for the definition of a
constitutional matter as the constitution defines what it is. This is rare as it provides
an exhaustive definition. It is defined in Section 332 as "constitutional matter" means
a matter in which there is an issue involving the interpretation, protection or
enforcement of this Constitution‖. A matter does not become a constitutional matter
and fall within the jurisdiction of the Constitutional Court merely because it is brought
in terms of s 85(1) of the Constitution. The mere reference to constitutional
provisions or alleged infringement of constitutional rights does not mean that a
constitutional issue has been raised. See Magurure and Ors v Cargo Carriers
International Hauliers (Pvt) Ltd t/a Sabot34

In Levi Nyagura v Lazani Ncube & Another 35 MALABA CJ stated as follows while
commenting on Section 175(4) of the Constitution:-

“There must be a moment in the procedure set out in s 175(4) of the

Constitution when the presiding person must address his or her mind to
factors that answer a number of questions, such as whether what is raised is
a constitutional question, whether the request to refer the matter to the Court
is frivolous or vexatious, and whether the determination by the Court is
necessary for the purpose of the proceedings before him or her. There must
be evidence that a request for a referral of a constitutional matter to the Court
was made to the presiding person”.

In summation, the court when constructing Section 175(4) must consider the
following:

34
CCZ 15/16.
35
CCZ 7/19

22
  Whether or not there is a constitutional matter
 Whether or not the request for referral is frivolous and vexatious
 Whether the determination for the question is necessary for the purposes of
proceedings

The meaning of the first and third requirement poses zero challenges. What however
is problematic is the meaning of ―frivolous and vexatious‖. The meaning of the
phrase ―frivolous or vexatious‖ was explained in the Williams case supra at 568C-F:

―In S v Cooper and Ors36 , BOSHOFF J said that the word ‗frivolous‘ in its ordinary
and natural meaning connotes an action or legal proceeding characterized by lack of
seriousness as in the case of one which is manifestly insufficient. The raising of the
question for referral to the Supreme Court under s 24(2) of the Constitution would
have to be found on the facts to have been obviously lacking in seriousness,
unsustainable, manifestly groundless or utterly hopeless and without foundation in
the facts on which it was purportedly based.

In Martin v Attorney General and Anor37 it was held that the ordinary and natural
meaning of the words ‗frivolous or vexatious‘ in the context of s 24(2) of the
Constitution had to be borne in mind and applied to the facts by the person presiding
in the lower court to form the requisite opinion. GUBBAY CJ (as he then was) at 157
said:-

“In the context of s 24(2) the word “frivolous” connotes, in its ordinary and
natural meaning, the raising of a question marked by a lack of seriousness;
one inconsistent with logic and good sense, and clearly so groundless and
devoid of merit that a prudent person could not possibly expect to obtain relief
from it. The word “vexatious”, in contra–distinction, is used in the sense of the
question being put forward for the purpose of causing annoyance to the
opposing party in the full appreciation that it cannot succeed; it is not raised
bona fide and a referral would be to permit the opponent to be vexed under a
form of legal process that was baseless ….”

36
1977 (3) SA 475 at 476D
37
1993 (1) ZLR 153 (S)

23
The Constitutional Court is reluctant or loathes to entertain referrals. It has guarded
jealously its jurisdiction in entertaining referrals. Its approach is apparent in
judgments stated in turn.

In Mutero and Anor v Attorney-General38 it was held that it was incompetent for
the court a quo to consider the issue of frivolity or vicariousness of a request for a
referral of a constitutional matter to the Court when it had already determined the
question on the merits. It was held that once a subordinate court rendered a decision
on the constitutional question, the dispute arising therefrom could only be resolved
by way of appeal.

In Makoto v T.K. Mahwe N.O. & Another39 MALABA CJ (in chambers) stated that: -

“The purpose of the exercise of the jurisdiction of a subordinate court under s

175(4) of the Constitution is to protect the process of the Court against
frivolous or vexatious litigation. The standard by which the facts on which the
raising of a question is based must be measured is put so high so as to
enable the person presiding in the lower court to stop legal proceedings that
should not have been launched at all”.

In Nyathi v The State 40 the Court also explained the importance of the procedure
under s 175(4) of the Constitution at p 10 of the cyclostyled judgment:-

“The importance of guarding the Court against the abuse of its process
through the adjudication of matters that ought not to have passed the frivolity
or vicariousness test cannot be overemphasised. The Court must protect its
integrity and ensure that it only adjudicates that which it is constitutionally
mandated to hear and determine. Consequently, where the procedures of the
Court are used to achieve purposes for which they are not intended that
would amount to an abuse of process. It is in this context that presiding
persons ought to exercise their minds when seized with a request for a
referral to the Court.”

38
2000 (2) ZLR 286 (S),
39
CCZ-3-20
40
CCZ 16/19,

24
With the above judgments on Section 175(4) of the Constitution, it is apparent that
the Constitutional Court does not easily entertain referrals. The majority of the
matters do not pass the litmus test enunciated in the provision. By way of comment,
the manner at which the Constitutional Court has constructed the provision defeats
the whole purpose of the same. It achieves that which the legislature intended. While
the provision is good law, the approach by the Constitutional Court has been a
consistent disaster. This has made the Constitutional Court result in striking off the
roll virtually all matters that are referred to it. A disaster it is.

It is also critical to relate to Section 175(1) of the Constitution as it also grounds

what can be termed ―automatic referrals‖. It provides thus,

“Where a court makes an order concerning the constitutional invalidity of any

law or any conduct of the President or Parliament, the order has no force
unless it is confirmed by the Constitutional Court”.

This entails that if a High Court makes a finding of constitutional invalidity, the matter
is automatically referred to the Constitutional Court. Further, this entails that the
order of the High will remain not operational until confirmed by the Constitution. This
provision has been dealt with by her ladyship Justice MUSHORE J Mangwiro v
Minister, Justice & Legal Affairs 41

CONSTITUTIONAL COURT RULES AND THEIR SCOPE

In addition to s 175 (4) of the Constitution which provides the framework, the
Constitutional Court Rules42 provide the nuts and bolts of referrals. They provide
guidance on how referrals are to be dealt with. For that purpose, rule 24 is apposite
and is reproduced below:

“(1)Where a person presiding over a subordinate court wishes to refer a

matter to the Court mero motu in terms of sub Section (4) of s 175 of the
Constitution, he or she shall –

41
HH 172-17.
42
S1 61-2016 Constitutional Court Rules, 2016

25
(a) request the parties to make submissions on the constitutional issue or
question to be referred for determination; and

(b) state the specific constitutional issue or question he or she considers

should be resolved by the Court.

(2)Where the person presiding over a court of lesser jurisdiction is requested

by a party to the proceedings to refer the matter to the Court and he or she is
satisfied that the request is not frivolous or vexatious, he or she shall refer the
matter to the Court.

(3)A referral under subrule(1) or (2) shall be in form CCZ4 and be

accompanied by a copy of the record of proceedings and affidavits or
statements from the parties setting out the arguments the parties seek to
make before the Court.

(4)Where there are factual issues involved, the court seized with the matter
shall hear evidence from the parties and determine factual issues:

Provided that where there are no disputes of fact, the parties may prepare a
statement of agreed facts.

(5)The record of proceedings referred to in sub rule (3) shall contain the
evidence led by both sides and where applicable, specific findings of fact by
the person presiding over the court and the issue or question for
determination by the Court.

(6)Where there is a statement of agreed facts in terms of the proviso to sub

rule(4), it shall suffice for the statement to be incorporated in the record in
place of the evidence and specific findings of fact.

(7)The person presiding over the court shall direct the clerk or registrar as the
case may be to prepare and transmit the record so prepared to the Court
within 14 days of the date such direction:

Provided that, before transmission, the registrar or clerk of the referring court
shall ensure and certify that the record is correct and accurate and in the case
of a referral in terms of sub rule(2), that it contains an appropriate draft order.

26
 (8)Where the Registrar receives a referral in terms of this rule, he or she shall
call upon the parties to file their heads of argument. After the filing of the
heads of argument, or should either party fail to file heads of argument, the
Registrar shall set the matter down for hearing.”

The above rule is there to facilitate the referral of matters to the Constitutional Court.
It activates Section 175(4) of the Constitution. It is one of the problems that
associate with the referral system of matters to the Constitutional Court. It demands
too much to the detriment of enforcement of human rights.

MAGISTRATES COURT RULES

The Magistrates Court (Civil) Rules 43 provide for the referral of civil matters from the
magistrates court to the Constitutional Court. The procedure is two-pronged as was
articulated above. The referral can be done by the magistrate mero motu or it can
be requested by the parties to the suit.

PROCEDURE IN CONSTITUTIONAL REFERRALS BY THE PARTIES

Rule 24 mirrors the second part of Section 175(4) of the Constitution which deals
with a request for referral and mainly reinforces the idea that where a court is
satisfied that the request is not frivolous or vexatious it has an obligation in terms of
both the Constitution and the Rules to refer the matter to the Constitutional Court.
There must be a request from a party in the proceedings44 prior to, for such an
obligation to ensue.

The request is a pre-requisite for a referral in terms of the rule and may be made
orally or through a written application. A request is a clear statement of moving a
decision by the court. The Constitution compels the court to refer a matter to the
Constitutional Court if requested by any party to do so and this means in criminal
proceedings the court can be requested by either the State or the defence or by both

43
Si 11/19
44
―Proceedings‖ in relation to constitutional matters relates to legal process in any court that is subordinate to the
Constitutional Court. In essence, proceedings relate to matters before a judicial officer of any court. In Meda v
Sibanda CCZ 10/16, the court held that proceedings are those in which there is between the parties one of
whom seeks redress or the enforcement of rights against the other. These are civil or criminal proceedings.

27
to refer a matter. If requested, it SHALL so refer the case unless it considers and
makes a finding that the request is frivolous or vexatious. A party wishing to make
the application must give the other side notice that such an application is going to be
made. The referral procedure is the same in both criminal and civil cases.

In most criminal cases in the Magistrates‘ Courts the accused person is usually
unsophisticated and unrepresented. The court must therefore bring to the attention
of the accused the possible breach of his/her right. It must advise the accused
person of the availability of the referral procedure and ask him if he wants the matter
to be referred. To this end, in S v Tau,45 the High Court held that:

“The fact that he has not complained of the delays I cannot properly regard as
constituting acquiescence in the wrong or waiver of his rights. This man was
unrepresented. He is uneducated. He was entitled to rely upon the court to
protect his rights and to ensure fair treatment of him. It was his privilege to
expect that the magistrate would advise him of his rights and would
scrupulously scrutinize the applications by the State for remand after remand.
He received no such advice or protection. He evidently knew of no rights.”

A request for referral can only be made in regard to a constitutional matter. The
Constitutional Court has no jurisdiction to determine any case which is not a
constitutional matter it is thus imperative to glean the meaning of the phrase
constitutional matter. Where a subordinate court does not take a view of the case
that requires it to interpret and apply a constitutional provision to determine the issue
raised, the matter does not pass for a constitutional matter and such a matter should
not be referred to the Constitutional Court.

In Magurure and 63 Orsv Cargo Carriers International Hauliers (Pvt) Ltd 46

Malaba DCJ (as he then was) defined a constitutional matter thus:

“A constitutional matter arises when there is an alleged infringement of a

constitutional provision. It does not arise where the conduct the legality of
which is challenged is covered by a law of general application the validity of
which is not impugned. The question whether an alleged conduct constitutes

45
1997 (1) ZLR 93 (H) at 99F
46
CCZ15/16

28
 the conduct proscribed by a statute requires not only proof that the alleged
conduct was committed, it also entails that the statutory provision against
which the legality of the conduct is tested be interpreted to establish the
content and scope of the conduct proscribed before it is applied to the
conduct found proved.”

In the case of Chiite & 7 Ors v The Trustees of The Leonard Cheshire Homes
Zimbabwe Central Trust47 Malaba DCJ (as he then was) defined the meaning of
the phrase constitutional matter as follows;

“A constitutional matter is defined under s 332 of the Constitution to m ean a

matter in which there is an issue involving the interpretation, protection or
enforcement of the Constitution. The issue raised before a court will be
sufficient evidence of the existence of a constitutional matter to the extent that
its determination requires the interpretation, protection or enforcement of the
Constitution”

The request for a constitutional referral is not format dependant. The request can be
made orally or through a written application. Tomana and Anor v Judicial Service
Commission and Anor48 Makoni J had an opportunity to deal with a matter where
the format of a request for constitutional referral was raised and had this to say,:-

“While s 175 (4) provides for a request for referral to be made, one must bear
in mind that this provision is in a Constitution. The Constitution provides a
broad framework which creates fundamental rights for one to seek
enforcement, protection and interpretation of those rights. One would have to
go through certain processes provided for by the law in either an Act of
Parliament and in the rules of the court. In terms of the rules of the High
Court, as they stand now, a party with a request such as the present one can
either make an application or in very rare circumstances, approach the court
by way of action. The application can be oral or written.”

47
CCZ 10/17
48
HH281/16 at p18

29
The court further stated that the request, whatever form it takes, either a written or
an oral application, must not be made from the bar by an applicant‘s legal
practitioner.

After a request has been made the request ought to be prosecuted by the presiding
officer. This is done through the leading of evidence. In an oral application, the
applicant or he who makes the request must lead evidence by calling witnesses who
will testify on his behalf. That is particularly so where there are disputes of fact which
need to be resolved. At this stage, it is important to note that the referring court ought
not be concerned with the violation of the Constitution because this question of the
violation of the Constitution is for the Constitutional Court to decide. This point was
made clear in S v Banga49where Gubbay CJ held as follows;

“… I trust that I have made it clear that it is essential for an accused, who
requests a referral to this court of an alleged contravention of the Declaration
of Rights, to ensure that evidence is placed before the lower court. It is on that
evidence that the opinion has to be expressed as to whether the question
raised is merely frivolous or vexatious. It is on that record that the Supreme
Court hears argument and then decides if a fundamental right had been
infringed.”

In the case of Mwonzora &31 Ors v The State50, Garwe JA had an opportunity to
deal with the issue of evidence in a referral matter and held as follows;

“Further it is insufficient to make a statement from the bar, as the applicants‟

legal practitioners did in this case. The applicants should have been called to
testify under oath in order to substantiate their complaints that their rights had
been violated. Had that happened the prosecutor would then have had the
opportunity to cross-examine the applicants and, thereafter, to adduce such
evidence as he may have considered necessary to contradict the allegations
made by the applicants. Only after hearing evidence from both sides would
the magistrate have been in a position to make findings of fact, which findings
he would have been bound to take into account in deciding whether or not to

49
1995 (2) ZLR 297 p301 D-G
50
CCZ9/15

30
 refer the issues raised to the Supreme Court. In short, it is the responsibility of
the court referring a matter to resolve any disputes of fact before making such
a referral.”

The leading of evidence is imperative before the referral of a case. It is crucial in that
it provides a basis upon which the court will make the necessary findings of fact. It is
upon those findings of fact that the court will then decide whether or not the
application is frivolous or vexatious.

The only instance that evidence can be dispensed with, is when there are no
disputes of fact, in which case a statement of agreed facts must be drawn and
signed by both parties who are subject to the proceedings where the request has
been made.51

After evidence has been led the presiding officer should then make a determination
on the matter. The language of the Constitution in Section 175 (4) through the use
of the word shall is peremptory. A presiding officer who is seized with a request to
refer a matter to the Constitutional Court should refer same unless the matter is
frivolous and vexatious. it is thus imperative that every presiding officer understands
what is meant by the words frivolous and vexatious in the context of an application
for referral.

The mischief of the descriptive frivolous and vexatious is to reserve to subordinate

courts the power to prevent a referral of a question which would amount to an abuse
of the process of the Constitutional Court. The phrase frivolous and vexatious has
52
been interpreted by the courts. In S v Cooper & Ors Boshoff J held that the word
‗frivolous‘ in its ordinary and natural meaning connotes an action characterised by
lack of seriousness, as in the case of one which is manifestly insufficient. An action
is in a legal sense ‗frivolous or vexatious‘ when it is obviously unsustainable,
manifestly groundless or utterly hopeless and without foundation In the case of
Martin v Attorney General & Anor53 Gubbay CJ defined the phrase as follows;

“Frivolous connotes in its ordinary meaning, the raising of a question marked

by lack of seriousness; one inconsistent with logic and good sense, and so

52
1977 (3) SA 475 at 476D
53
1993 (1) ZLR 153 (S) p157B-D

31
 clearly groundless and devoid of merit that a prudent person could not
possibly expect to obtain relief from it. The word vexatious, in contra-
distinction, is used in the sense of the question being put forward for the
purposes of causing annoyance to the opposing party, in the full appreciation
that it cannot succeed, it is not raised bona fide, and a referral would be to
permit the opponent to be vexed under a form of legal process that was
baseless.”

Section 175(4) of the Constitution makes it clear that a determination of the frivolity
or vexatiousness of a request is a pre-requisite to making a decision on whether or
not to refer a matter to the Constitutional Court. A determination of whether or not
the request is frivolous or vexatious is not a finding to be undertaken by the
Constitutional Court. It is an exercise which must be carried by the presiding judicial
officer in that particular matter. What must be frivolous or vexatious is the request
and not the question sought to be referred. A question cannot be frivolous or
vexatious.

If the presiding officer is convinced that the request is frivolous or vexatious, the
aggrieved person has the locus standi approach the Constitutional Court for
redress in terms of s 85 of the Constitution.

It is the failure by the judicial officer to comply with the requirements of the protection
provided by the law of the fundamental human right or freedom which results in the
violation or likelihood of violation of the right or freedom against which the
Constitution guarantees to the litigant the right to the protection of the law. It is,
therefore, important in every case of an alleged violation by a judicial officer of a
fundamental human right or freedom to understand what it is that the judicial officer
was required by the law to do and what he did, in order to decide whether there was
failure of judicial protection which caused a violation of the fundamental human right
or freedom concerned.

In Martin v Attorney General54 case Gubbay CJ dealt with the rights of an

applicant whose request would have been ruled to have been frivolous and vexation
and had this to say;

54
Ibid.

32
 “The fallacy of the contention is self-evident. Suppose that a judicial officer,
solely due to animosity towards an accused, in bad faith and without any
warrant, were to rule that the question raised by him was frivolous or
vexatious and so order his remand in custody pending trial. Could it then be
said that the accused was only entitled to approach the Supreme Court? I
think not. Such action by the judicial office concerned would, as mentioned
before, itself constitute an infringement of the accused's entitlement.”

After making a finding that the request to refer the question is not frivolous or
vexatious, the judicial officer must refer the question to the Constitutional Court. If
the finding is made that the request to refer the question is merely frivolous or
vexatious, the judicial officer ought to decline the request and continue with the
proceedings. Once he has made the decision to refer the judicial officer must state
clearly which question must be determined by the Constitutional Court.

Referral in terms of Section 175 (4) of the Constitution, although requested by the
parties, is made by the judicial officer to whom the request was made. It essentially
follows that the judicial officer as the one making the referral ought to formulate or
state the question for referral. Failure to formulate a question is a serious omission
on the part of the presiding officer. The Constitutional Court is guided by the
constitutional question that is placed before it. The judicial officer knows the issue
that has to be answered as it pertains to the proceedings before him or her. He or
she must therefore formulate the question.

In any constitutional application, for an applicant to succeed he must show that the
constitutional issue raised in the court a quo is one which is necessary to dispose of
the dispute between the parties.

This was succinctly amplified in the case of Director of Public Prosecutions,

Transvaal v Minister of Justice and Constitutional Development and Others 55
as follows:-

“A court may not ordinarily raise and decide a constitutional issue, in abstract,
which does not arise on the facts of the case in which the issue is sought to
be raised. A court may therefore, of its own accord, raise and decide a

55
2009 (4) SA 222 at 244B-C

33
 constitutional issue where (a) the constitutional question arises on the facts;
and (b) a decision on the constitutional question is necessary for a proper
determination of the case before it; or it is in the interests of justice to do so.”

After the formulation of the questions the record is then prepared and sent to the
Constitutional Court. The requirements for the preparation and transmission of the
record to the Constitutional Court are lead out in terms of the rules of the
Constitutional Court in particular Rule 4 as read with Rule 24 (5) –(7)56

CONSTITUTIONAL REFERRALS AT THE INSTANCE OF PRESIDING OFFICERS

The constitutional provisions enshrined in Section 174 (4) allow a presiding officer in
a lower court to mero motu refer a matter with constitutional questions to the
Constitutional Court. The rules of the Constitutional Court and the Magistrates‘ Court
rules echo the same sentiments. The rules of the Constitutional Court provide as
follows;

2. ( l) Where a person presiding over a subordinate court wishes to refer a matter to

the Court mero motu in terms of subSection ( 4) of Section 175 of the Constitution,
he or she shall-

(a) request the parties to make submissions on the constitutional issue or question to
be referred for determination; and

56
1. The record must be typed/ transcribed.
2.It must contain the following:
I. Record of proceedings (where there are no disputes of fact, a statement of agreed facts);
ii.Statements by the parties setting out the arguments they wish to make before the court
iii.The constitutional question being referred;
iv.A draft order; and
v. Form CCZ4.
3. Certification by the clerk that the record is correct and accurate and that it contains a draft order.
4. The record must be prepared and transmitted by the cle rk to the Constitutional Court within 14 days of being
directed to do so by the magistrate.
5. Upon receipt of the record, the registrar must notify the applicant to file heads of argument within 15 days of
receipt of the notice.
6.If such heads are not received within the stipulated dies induciae, the referral shall be deemed abandoned and
the registrar must notify the clerk of court of such fact

34
(b)state the specific constitutional issue or question he or she considers should be
resolved by the Court

Thus the court driven procedure is relatively less cumbersome as compared to the
party driven procedure for referral. Through the court driven process there is no
issue regarding the question of frivolous and vexatious which is inherent in the party
driven system. The presiding officer is the one with the sole discretion in the court
driven process. Once the presiding officer has exercised his discretion judiciously
then he will require the parties before him to make submissions on the constitutional
issue or question to be referred for determination. Thereafter the presiding officer will
state the specific issue or question he or she considered should be resolved by the
Constitutional Court.

CONCLUSION
After the above critical cross examination it is crystal clear that the constitutional
referral in Zimbabwe is two pronged. A referral can be made by the presiding officer
mero muto during the course of the proceedings. The parties to the suit can also
request the presiding officer to refer the matter to the Constitutional Court. This
chapter brought out the procedures necessary from a referral to be made to the
Constitutional Court. It is also apparent that the CC is loath to entertain referrals. It
slowly does so.

The next chapter will be focused on the challenges being brought out in relation to
referral of matters to the Constitutional Court.

CHAPTER THREE

35
CHALLENGES IN RELATION TO CONSTITUTIONAL REFERRALS IN
ZIMBABWE

INTRODUCTION
The previous chapter was focused on bringing into lime light the legal regime
governing constitutional referrals. It was clearly seen that constitutional referrals can
be made by a presiding officer mero motu or through a request by the parties to a
suit be it civil or criminal. Additional there are instances of automatic referrals.
Section 174 (4) of the Constitution is significant as its purpose is to provide speedy
access to the Constitutional Court where the issue in dispute concerns the possible
infringement of an individual's rights or freedoms or any constitutional infringement.

Constitutional referrals also entrench the supremacy of the Constitution.

Constitutional referrals entrench the principle of constitutional dominance established
it is peremptory that constitutional issues ought to be determined by the highest court
of the land as far as constitutional issues are concerned. Thus constitutional issues
which would have been raised in the courts should be determined by the
Constitutional Court.

CHALLENGES EMANATING FROM CONSTITUTIONAL REFERRALS

It is the purpose of this chapter to show the challenges affecting the constitutional
referral procedure as a constitutional procedure and remedy. These challenges
include application of the doctrines of constitutional avoidance, wrongful refusal to
refer matters, unnecessary referrals, procedural deficiencies, Constitutional Court
dominance, lack of inherent jurisdiction by magistrates to deal with constitutional
issues, length of time taken to hear referrals, technicalities by the Constitutional
Court, presiding officers failing to mero motu refer constitutional matters, frivolous
and vexatious dilemma just to mention but a handful.

WRONGFUL REFUSAL TO REFER MATTERS

In some instances the presiding officer has unnecessarily refused to refer a matter to
the Constitutional Court. A matter where a constitutional question has been raised

36
can be deemed frivolous and vexatious and thus will not be referred to the
Constitutional Court. Such a state of affairs is highly prejudicial to the party whom
would have reasons to believe that his or her rights have been prejudiced.

In the case of Martin v Attorney General57 a magistrate refused to grant the

Applicant his request to have a matter referred to the Supreme Court. The applicant
was placed on remand on an allegation of contravening s 3(1)(f) of the Prevention of
Corruption Act 1985. The magistrate had been requested to refer the matter to the
Supreme Court in terms of s 24(2) of the Lancaster House Constitution. The
magistrate decided to place the applicant on remand, and held therefore that the
request to refer the matter was frivolous and vexatious. The applicant applied directly
to the Supreme Court in terms of s 24(1) for relief. The Supreme Court found for the
Applicant and held that the refusal by the magistrate to refer the matter to the
Supreme Court was not proper and it actually infringed the Applicant‘s rights. The
court went on to point the deficiencies in the procedure as follows:-

“The fallacy of the contention is self-evident. Suppose that a judicial officer,

solely due to animosity towards an accused, in bad faith and without any
warrant, were to rule that the question raised by him was frivolous or
vexatious and so order his remand in custody pending trial.”

In Helen Matiashe v Honourable Mahwe N.O & Anor 58 an application for referral to
the Supreme Court was made in the magistrate court. The request was dismissed.
Following that decision the applicant filed an application in terms of s 24(1) of the
former constitution to declare the refusal of the referral as wrong. Garwe JA found for
the Applicant and held that the refusal was wrong and had this to say;

“It is clear from his reasons for dismissing the request for referral that the
Magistrate did not ask himself whether a constitutional issue did arise from
the proceedings. He considered that the applicant had contributed to the
delay and that she was trying to further delay the day of reckoning. On that
basis alone he found the application to be frivolous and vexatious.”

57
supra
58
CCZ 12/14

37
I am satisfied that the Magistrate was wrong in determining the application on the
basis of who was to blame for the delay. As Mr Mpofu correctly submitted, the
Magistrate asked himself the wrong question and inevitably came to the wrong
conclusion. Indeed the State conceded that the decision to refuse to refer the
application was wrong and that it violated the applicant‘s right to the protection of the
law as provided in s 18(1) of the former Constitution/‖

In the case of Nyagura v Ncube N.O. and Ors59, a request for referral of a matter
was deemed frivolous and vexation by the magistrate. The magistrate did not act in
accordance with the provisions of Section 175 (4) in that he deemed that the
constitutional question which had been raised was frivolous and vexatious. There
was no consideration of the question whether a request for a referral of the
constitutional questions raised by the applicant was frivolous or vexatious. However
the law is clear that the presiding officer should not concern himself with the
constitutional matters as such will be the providence of the Constitutional Court. The
presiding officer should only concern himself with whether or not the request is not
frivolous and vexatious. The court had this to say;

“The purpose of the exercise of the jurisdiction of a subordinate court under

s 175(4) of the Constitution is to protect the process of the Court against
frivolous or vexatious litigation. Section 175(4) of the Constitution does not
authorise a subordinate court to determine the constitutional matter on the
merits. If the subordinate court exercises its general power to determine the
constitutional matter on the merits, it does so on the basis of some other law,
not s 175(4) of the Constitution.”

To add on reference ought to be made to the case of Mutanda v Prosecutor

General & Ors60 where the magistrate in the lower court whom had been seized with
a request for referral dismissed the request on the fact that it was merely a dilatory
ploy. The magistrate had not exercised his mind on the important question of
whether or not the request was frivolous and vexatious. The Constitutional Court per
CHIDYAUSIKU J noted that there was a misdirection on the part of the magistrate in
failing to consider whether or not the request was frivolous and vexatious.

59
CCZ 7-19
60
CCZ 1-017

38
Thus from this it can be seen that it is not an extraneous argument to propagate the
fact that it is possible that genuine matters which ought to be ventilated by the
Constitutional Court are thrown out capriciously or in bad by the presiding officers. It
is submitted that cases which ought to be heard by the Constitutional Court are
being thrown away on the basis that they may be delaying tactics.

This failure to properly deal with requests for referrals has led to applications to be
filed in terms of Section 85 (1) of the Constitution on the fact that the refusal to grant
the referral was an infringement of the right to fair trial. This undesirable state of
affairs leading to delays can be rectified if matters which warrant referral are referred
to the Constitutional Court. it is undesirable for litigants to have to seek recourse in
terms of Section 85 (1) when the referral ought to have had been granted.

IMPROPER REFERRAL OF MATTERS

Another challenge which is affecting the referral procedure as was set out in Section
24 (2) of the previous constitution and now under Section 175 (4) is the issue of
improper referrals of matters/ this can be seen by the way presiding officers in the
lower courts fail to properly refer matters to the Constitutional Court. Most referral
applications which find way in the Constitutional Court have to pass the test whether
or not they were properly referred. A plethora of cases have not passed this test.
.When a matter has failed to pass this test it is inevitable that such a matter has to be
dismissed. It would be unfair to blame the Constitutional Court of being technical
when matters are not heard on the merits when in actual fact such matters had not
been properly referred.

This can be substantiated by making reference to the case of Mutero and Anor v
Attorney-General61.In this case, the Applicant challenged the right of The State to
keep on remanding him. The State opposed the application of challenging the
remand. The magistrate then made a ruling in favour of the State and the Applicant
remand continued. After the delivery of the ruling the Applicant then requested that
the matter be referred to the Supreme Court in accordance with Section 24 (2) of
the previous Constitution. The magistrate acceded to this request and the matter

61
Ibid.

39
was referred to the Supreme Court. The referral was improper given the fact that a
decision had already been made by the magistrate. It was incompetent to refer a
matter in a case where a ruling had been made. The Applicant ought to have sought
for referral first rather than wait for a decision to be made and when it turned out to
be against him then seek referral.

In62 the presiding officer referred a matter to the Supreme Court mero motu.
However the referral was held to be improper as the presiding officer had not
provided the constitutional questions to be referred. The presiding officer referred the
proceedings. It is not the proceedings which are referred but only the constitutional
questions.

In the case of Douglas Togarasei Mwonzora & Ors v The State 63 a referral to the
Constitutional Court was improperly made. The presiding officer in the lower court
did not take into account the constitutional provisions governing the constitutional
referral procedure. The presiding officer failed to ask himself whether the request
was frivolous and vexatious. Garwe JA had this to say;

“The Magistrate at Nyanga did not, as he should have, ask himself whether
the issues raised were not frivolous and vexatious. Indeed it appears the
magistrate was not sure as to what was required of him. He made no finding
that the application was not frivolous or vexatious”

The Honourable GARWE JA went on to comment that the magistrate had no idea on
what he was supposed to do. This clearly substantiates that it is improper referrals
are indeed a challenge in relation to the remedy of constitutional referrals.

In the case of Jennifer Williams v The State64 Mavangira AJCC was also seized
with an application for referral which had been improperly referred. The magistrate
did not make a finding, as was incumbent whether or not the application for referral
to this court was frivolous or vexatious. MAVANGIRA AJCC in dismissing the
application had this to say;

62
1986 (1) ZLR p1
63
CCZ 287-11
64
CCZ 14-2017

40
 “It is not only necessary but very important, before the final disposition of this
matter, to highlight that this is not an isolated case where a magistrate has
failed to properly deal with an application for referral to the Constitutional
Court. The frequency with which this court has been confronted with this
shortcoming is a cause for great concern particularly as this court has, in a
number of judgments, pointed magistrates to the correct procedure that must
be adopted.

The intended guidance or correction in the pronouncements by this court does

not seem to be taken heed of. It would appear that there might be need for
remedial intervention by both the Judicial Service Commission and the
National Prosecuting Authority in their respective capacities and domains, for
the conscientisation of magistrates and prosecutors.”

Thus, from this it can be seen that there is an inherent challenge in relation to
constitutional referrals in our jurisdiction. Matters are being referred to the
Constitutional Court in circumstances which do not warrant such referral. This
cumulatively causes an unnecessary burden to the Constitutional Court and also
delays justice in the lower courts.

PROCEDURAL AND SUBSTANTIVE DEFICIENCIES OF APPLICATIONS

REFERRED TO THE CONSTITUTIONAL COURT
Most applications which would have had been referred to the Constitutional Court
will be found ridden with various procedural and substantive deficiencies. As such
the Constitutional Court would be put in a precarious position to make a proper
determination. This can be seen by making reference to the failure to have sufficient
evidence place before the presiding officer in the lower court.

It is on record and evidence that the Constitutional Court hears argument and then
decides if a fundamental right had been infringed. Only in exceptional circumstances
will an applicant be permitted to supplement the record of the proceedings before the
lower court by the production of affidavits. Cogent reasons will have to be provided
as to why the further evidence was not presented to the lower court.

41
In the case of S v Banga65 a referral was made but it had substantive deficiencies.
The legal practitioner representing the Applicant at his trial in the magistrates court
requested the magistrate to refer to the Supreme Court the issue of whether or not
the Applicant was entitled to a permanent stay of the criminal proceedings brought
against him on the grounds that there had been a breach of his right to a fair hearing
within a reasonable time as provided in s 18(2) of the previous Constitution. The
legal practitioner did not given proper notice to the prosecution that he intended to
raise this issue. He also did not call the Applicant to testify, but simply made a
statement from the bar, pointing to the length of the delay. The trial magistrate
referred the matter as requested. In dismissing the application the Supreme Court
per Gubbay CJ had this to say:

“Where a legal practitioner requests the referral of the m atter to the Supreme
Court, he must call his client to give evidence before the trial court. This is
essential, as it will be on the basis of the record of that testimony that the
Supreme Court will decide whether there has been an infringement of the
right to trial within a reasonable time. The accused must be called to testify
about all the matters that will have a bearing upon this issue, such as whether
the accused himself has been responsible for the delay, whether the delay
has caused him mental anguish and has disrupted his business and social
activities and whether the delay has interfered with his ability to defend
himself.”

LACK OF INHERENT JURISDICTION BY MAGISTRATES TO DEAL WITH

CONSTITUTIONAL ISSUES
It should be noted that the Magistrates Court does not have jurisdiction to determine
constitutionally related matters. This is so because the Magistrates‘ Court is a
creature of statute and the enabling act66 does not clothe the court with the
jurisdiction to hear a constitutional matter. As such if a constitutional matter arises in
the magistrates court the presiding officer has to refer the matter to the Constitutional

65
1995 (2) ZLR p297
66
Magistrates Court Act

42
Court because such a presiding officer does not have jurisdiction to hear such a
matter.

In that regard for the matter to be referred to the Constitutional Court the frivolous
and vexatious test has to be passed.so the only role a magistrate can play in a
constitutional referral is determining whether the request is frivolous and vexatious.
In such a situation a dilemma will arise. The dilemma that the magistrates will resort
to referring all cases to the Constitutional Court and or they will refuse to refer a
matter and then the complainant will not have a remedy.

It cannot be argued that most referrals are from the magistrates‘ court. Very few
referrals have been made from the High Court or any other court. It follows that since
most referrals are from the magistrate‘s court the court ought to have powers in
relation to constitutional matters.

LENGTH OF TIME TAKEN TO HEAR REFERRALS

A significant challenge on the constructional remedy of constitutional referrals is that
constitutional referrals take time to be heard and finalised by the Constitutional
Court. It is trite principle in our jurisdiction that justice must be dispensed quickly and
that justice delayed is justice denied.

The case of Mandirwhe v Minister of State was heard in the High Court in July
1980 is a case in point to illustrate the above mentioned point. In the Mandirhwe
matter, the presiding officer referred the proceedings to the Supreme Court in
accordance with Section 24 (2). The referral was mero motu. The Supreme Court
only delivered its judgment in relation to the referral in 1986. The matter was only
finalised after six years.

The case of Douglas Togarasei Mwonzora & Ors v The State 67 was brought
before the magistrates court in Nyanga on the 18 th of February 2011. Sometime in
May 200 the Applicants then filed a request for referral to the Supreme Court in
terms of s 24 (2) of the former Constitution of Zimbabwe. The matter was heard in
the Supreme Court on the 11 th of June 2014. The Supreme Court then delivered its
judgment in 2015. The matter was finalised after five years.

67
CCZ 287-11

43
In the case of Joel Norman Sengerendo v The State 68 the Applicant was
remanded at the magistrate court on the 10th of August and thereafter remanded on
a number of occasions. On 20 th of February 2012 the applicant made an application
for referral of this matter to this Court for determination in terms of s 24(2) of the
Constitution. The trial magistrate granted the application and the matter was referred
to the Supreme Court. The matter was heard in the Supreme Court on the 26 th of
February and 10th of November in the year 2014 and judgment delivered in the same
year. The matter was only finalised after two years.

In the case of Eriza Muhala & Ors v Patrick. T Mukorera 69 the matter was filed in
court on the 10th of September 2013. The Applicants thereafter filed an application
for referral in terms of s 175 (4) of the Constitution before the magistrates‘ court, on
18th of October 2013. The matter was argued before this Court on the 4 th of June
2014. Judgment was then reserved and then delivered in 2019. The matter was only
finalised after six years.

The inarticulate major premise behind constitutional referrals is to vindicate the

Constitution or the Declaration of rights as was in the previous Constitution.
Constitutional referrals ought to be mechanism to provide a speedy resolution a
matter which would have had been referred. The delays which have been seen
above are clearly an anti-thesis of the spirit and purpose of constitutional referrals.
Cessante ratione legis cessante ipsa lex 70. The reason behind constitutional
referrals has been bedevilled by the inordinate delays in prosecution of the matters.

Due to the delays in hearing referral applications unscrupulous litigants and legal
practitioners have found constitutional referrals as an effective delaying mechanism.
This is more applicable in criminal matters wherein every day lost due to delay will
contribute to the weakening of the State case. When the matter is then remitted
evidence would have been lost and witnesses may be sometimes no longer
available. In civil cases this might be a useful tool for defendants without any
plausible defence to frustrate the Plaintiffs.

68
CCZ 11-14
69
CCZ 2-18
70
Reason is the soul of the law if the reason for the law ceases the law ceases.

44
PRESIDING OFFICERS FAILING TO MERO MOTU REFER CONSTITUTIONAL
MATTERS
The referral procedure is two pronged. It can be made by the presiding officer or the
parties to the suit. However most referrals are at the instance of the parties.
Presiding officers are shying away from referring matters to the Constitutional Court.
It would be in the best interest of judges for presiding officers to be quick to pinpoint
constitutional infringements especially those in the Bill of Rights. Most accused
persons in criminal matters lack legal representation and will not be aware of the
cumbersome referral procedure. Presiding officers in criminal matters do not inform
accused persons of the fact that they are at liberty to have their matters referred to
the Constitutional Court.

The presiding officers in our courts are not involved in the referral procedure mostly
because the lack of judicial activism. The presiding officers are generally
conservative and will not want to be seen at logger heads with the executive and the
legislature. Another reason is that in our courts the adversarial system is applicable;
as such the role of the presiding officer will be limited to applying the law as it is
referring a matter to the Constitutional Court may be seen as descending in the
arena.

PASSIVE CONSTITUTIONAL COURT BENCH

It is respectfully submitted that the constitutional referral procedure has now become
a blunt tool due to the passive nature of the Constitutional Court bench. This
argument is not being made out of thin air. Case study71 on the subject matter clearly
shows that during the Dumbutshena72 and Gubbay73 bench there were more
constitutional referrals which were successful than the Chidyausiku74 and Malaba75
bench. This can be attributed to the fact that the Gubbay bench in particular was
proactive unlike the Chidyausiku and Malaba bench. The remedy of constitutional
referrals can only be an effective tool for vindication of the Bill of Rights and other

71
See Connolly & Company (Private) Limited v The State SC 175-97 ,George Burt v The State SC 204-
98,Mthabisi Sivako v The Attorney-General SC 100-99, Lees Export and Import (Private) Limited v Zimbabwe
Banking Corporation SC 78-99,In Re Patrick Chinamasa SC 113-2000
72
Enock Dumbutshena Chief Justice of Zimbabwe from 1984 -1990
73
Antony Gubbay Chief Justice of Zimbabwe 1990-2001
74
Godfrey Guwa Chidyausiku Chief Justice of Zimbabwe 2001 -2017
75
Luke Malaba Chief Justice of Zimbabwe 2017 to date

45
constitutional infringements. In recent times, the Constitutional Court has resorted to
the striking of matters off the roll on the basis of a number of factors. It has
capriciously applied the principle of constitutional avoidance. It has even refused to
hear referrals where the questions are not properly phrased and where the Applicant
would have used a wrong form contrary to the rules.

LACK OF UNIFORM RULES ON CONSTITUTIONAL REFERRALS

It is submitted that the law relating to the remedy of constitutional referrals is
relatively sketchy. There is no clearly laid down procedure for constitutional referrals.
Prior to the coming in of the Constitutional Court rules there was no legislative
procedure behind constitutional referrals. In as much as the Constitutional Court
rules provide from the procedure for constitutional referrals the rules are not enough
as they do not shed enough light. There are no provisions in the Criminal Procedure
and Evidence Act dealing with the procedure to be adopted in constitutional referrals.
The High Court rules are silent on the procedure. This is the same for the
Administrative Court and the Labour Court. An exception is the Magistrates Court
(Civil) Rules which provide for constitutional referrals. The procedure is basically a
nightmare. In the case of Mutero v Attorney General Gubbay 76 CJ had this to say
in passing:-

“Appreciating the insurmountable difficulties confronting this so-called referral,

Mr Samukange urged the Court to treat the matter as if it were an application
to review the decision of the magistrate.”

The Chief Justice was on point in noting that there are inherent challenges in relation
to the remedy of constitutional referrals. This challenge cumulatively led to matters
being referred to the Constitutional Court and such matters will not pass the whether
or not the matter was properly referred test.

CONCLUSION
In conclusion after the above critical cross examination it is crystal clear that there
are inherent challenges in relation to the constitutional remedy of constitutional
referrals. These challenges have contributed to constitutional referrals being blunt
tools for the enforcement of constitutional remedies.
76
2000 (2) ZLE (S)

46
The next chapter will take a look around in jurisdictions where constitutional referrals
are used as part of judicial review. In particular comparative jurisdiction analysis will
be made by taking into account the referral constitutional systems in South Africa,
Kenya and Namibia.

47
CHAPTER FOUR:
A SURVEY ON HOW CONSTITUTIONAL
ISSUES ARE HANDLED IN OTHER
JURISDICTIONS WITH PARTICULAR
ATTENTION TO SOUTH AFRICA,
NAMIBIA & KENYA. ARE THERE ANY
LESSONS TO BE LEARNT? BAD OR
GOOD

INTRODUCTION
It will be a misnomer and this study will be a failure if a comparative study is not
canvassed on how Constitutional litigation is done in other countries within the SADC
region. In this regard, this study will explore constitutional litigation in jurisdiction like
Kenya, South Africa and Namibia. This obviously entails that the court structure and
legal system of each jurisdiction has to be canvassed. Thereafter, an evaluation as
to how referrals if any are handled in each jurisdiction will be made. In the event of
unavailability of referral procedures, this study will analyse how constitutional
remedies are achieved.

SOUTH AFRICA VERSUS ZIMBABWE

Focus will first go to South Africa. The starting point is the Constitution of the
Republic. The apex court in South Africa is the Constitutional Court. It is established
in terms of the Constitution. Section 167 of the Constitution of the Republic of South
Africa of 1996 (―the constitution‖) confers status of the ―highest court‖ in the land on
the Constitutional Court which has jurisdiction to deal with constitutional matters –

48
defined as any issue involving the interpretation, protection or enforcement of the
Constitution77 – and any other matter if it grants leave to appeal.

In the latter scenario, such a matter will only be heard if it raises an arguable point of
law of general public importance which ought to be decided by the CC, this principle
was emphasised in Paulsen v Slip Knot,78 where it was held that the jurisdiction of
the Constitutional Court extends to non-constitutional matters as long as it is in the
interests of justice.79

The Constitution of South Africa does not provide for referral procedure in the
manner that is provided for by Section 175(4) of the Zimbabwean Constitution. The
referrals which is provided for in terms of the Section 79 of the Constitution, the
presidential referrals. It is the 1994 Constitution which used to provide for referral
procedure per Section 102. The provision was considered to be problematic per
CHAKALSON P in Annette Brink v Andre Kitshoff NO80

Because it is the highest court, it follows that the Constitutional Court is the court of
last instance whenever it hears a matter. As a result, the Constitutional Court is
primarily conceived as an appellate court unlike in Zimbabwe were the Constitutional
Court deals with a variety of matters with appeals being one of its functions.
Exceptions to this are where the court has exclusive jurisdiction or when the interests
of justice warrant it. This accord with Section 167 of the Zimbabwean Constitution.
Accessing the Constitutional Court in these different ways is discussed in more detail
but first, it is important to understand who may bring matters to the Constitutional
Court – that is locus standi.

STANDING – WHO CAN ACCESS THE CC

The Bill of Rights enshrined in the constitution protects all natural persons and to the
extent to which the rights can be enforced, juristic persons as well. These are the
persons that may access the Constitutional Court since the court was established to
give effect to the supremacy of the Constitution and the Bill of rights contained
therein.

77
Section 167(7).
78
2015 (3) SA 479 (CC).
79
Para 16.
80
CCT 15/95.

49
To ensure that a person has the requisite locus standi to approach a competent
court there are two important aspects that must be established: firstly, an allegation
that a fundamental right has been infringed upon or threatened and secondly that the
applicant has sufficient interest in the matter. Section 38 of the Constitution guides
this enquiry. This is exactly similar to the provisions of Section 85 of the
Zimbabwean Constitution. In turn, this study will check how fundamental rights are
protected in South Africa with regards to the role of the Constitutional Court.

There are instances where the South African Constitutional Court has an exclusive
jurisdiction over certain matters. This is when the Court sits as court of first instance
and as the only one that can hear a matter. Such instances are set out clearly in the
Constitution, Section 167 (4) (a)-(f). This Section lists the following as instances of
exclusive jurisdictions:

 Decisions on disputes involving organs of states and the powers or

functions of any of these organs.
 Decisions on the constitutionality of any parliamentary or provincial
Bill.
 Decisions on applications by members of the National Assembly as
envisioned by Section 80 of the Constitution or applications by
members to the Constitutional Court as envisioned by Section 122
of the Constitution.
 Decisions on the constitutionality of any amendment to the
Constitution.
 Decisions on whether Parliament or President has failed to fulfil a
constitutional obligation.
 And lastly to certify a provincial constitution.

Section 167 of the Constitution of South Africa is replicated by Section 167 of the
Zimbabwean Constitution. The two provisions show the functions of the
Constitutional Court in either jurisdiction.

The Constitutional Court has function of confirming certain findings of the lower
courts. This function of confirmation is similar to Section 175(1) of the Constitution of
Zimbabwe. In South Africa, where a lower court hands down an order of invalidity in
respect of a certain law, the Constitutional Court has the final say on whether the

50
invalidity will hold force of law or not. This is done in confirmation proceedings which
are not an intrusion on another court‘s power but rather an exercise of its
81
(Constitutional Court‘s) legitimate power. In SARFU, it was held that only the
highest court has been entrusted with the duty of supervising the exercise of power
by the legislative and executive organs of state.82

This duty is carried out by considering every case in which an order of invalidity has
to be made and to decide whether this has been correctly done. The supervisory role
83
of the Constitutional Court was also established in Pharmaceutical Manufacturers,
where the court stated ―the apparent purpose is to ensure that this court, as the
highest court, should control declarations of invalidity against the highest organs of
state.‖

Rule 16 of the Constitutional Court Rules regulates the confirmation proceedings

procedure. The process runs automatically and without the parties because of the
ultimate oversight that the Constitutional Court has. An automatic right to appeal is
established by rule 16 (2) the moment there are confirmation proceedings running.

This Section will deal with referrals in South Africa versus the nature of referrals in
Zimbabwe. Certain provisions in the Constitution provide for referral of matters to the
Constitutional Court in such cases the court obtains exclusive jurisdiction. In the
Liquor Bill case84 it was held that the President of the Republic is empowered to
refer a Bill to the Constitutional Court to consider its constitutionality even where the
President‘s reservations relate to a single provision in the bill. The Constitutional
Court then examines the referred provision(s) to certify that every part accords with
Constitution. The President is empowered to do this in terms of Section 84 (2) (c) of
the constitution. In Zimbabwe this referral mechanism is available in terms of
Section 167(3) which gives the Constitutional Court the final say on matters referred
to it.

81
President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000
(1) SA 1.
82
Para 145.
83
Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the
Republic of South Africa and Others 2000 (2) SA 674.
84
Ex Parte President of the Republic of South Africa In re: Constitutionality of the Liquor Bill 2000 (1) SA 732
(CC).

51
Section 79 of the constitution is also concerned with the referral of Parliamentary
Bills by the President in a manner that is similar to Section 121 with the only
difference being the latter is concerned with the Premier and provincial legislature.

The procedure to be followed when referring a Bill in terms of the above Sections is
codified in Rule 14 of the Constitutional Court Rules. According to this rule such
referrals shall be in writing addressed to the Registrar, the Speaker of the National
Assembly and the Chairperson of the National Council of Provinces, or to the
Speaker of the provincial legislature in question, as the case may be. The referral
should specify the provision or provisions of the Bill in respect of which the President
of the Republic of South Africa or the Premier of a province has reservations, the
constitutional provision or provisions relating to such reservations and finally the
grounds or reasons for such reservations.

The rule further provides an opportunity for political parties represented in the
national Parliament or the provincial legislature concerned to make written
submissions relevant to the determination of the issue. Upon receipt of the referral,
the matter will then be dealt with in accordance with directions given by the Chief
Justice.

Next, Section 122 of the Constitution goes on to provide for the application by
members of a provincial legislature to the Constitutional Court for an ordering
declaring that all or part of a provincial Act is unconstitutional. In other words, the
legislature may, under this Section refer a matter to the Constitutional Court.

Such an application must be supported by at least 20% of the members of the

legislature and made within 30 days of the date on which the Act was assented to
and signed (Section 122 (2) (a)-(b)). The Constitutional Court may order that such
an Act has no force until the court decides on the application. However, a pre-
requisite of this is that it is in the interests of justice and the application must carry
reasonable prospects of success.

A similar referral provision is found in Section 80 of the Constitution which provides

for the application by members of the National Assembly to the Constitutional Court
for an order declaring that all or part of an Act of Parliament is unconstitutional.

52
Such an application must be supported by at least one third of the members of the
National Assembly and made within 30 days of the date on which the President
assented to and signed the Act. Similarly, this Section also allows the Constitutional
Court to make an order that such an Act has no force until the Court decides on the
application when it is in the interests of justice and the application carries reasonable
prospects of success.

Rule 15 of the Constitutional Court rules deals with the procedure for determining
constitutionality of an Act in terms of either Section 80 or 122 which have similar
provisions. Under this rule, an application in terms of Sections 80 (1) and 122 (1) of
the Constitution is to be brought on notice of motion supported by an affidavit as to
the contentions upon which the applicants rely for relief and to be lodged with the
Registrar. The application is then served on the Speaker of the National Assembly
and the Chairperson of the National Council of Provinces, or on the Speaker of the
provincial legislature concerned.

The notice is required to request that the Speaker and, if relevant, the Chairperson of
the National Council of Provinces bring the application to the attention of all political
parties represented in the relevant house or legislature in writing within five days of
the service upon him or her of such application.

Further, the application should be accompanied by a certificate by the Speaker of the

legislature concerned that the requirements of Section 80 (2) (a) or Section 122 (2)
(a) of the Constitution, as the case may be to comply with the rules.

Substantially, the application should specify the provisions of the Act which are being
challenged, the provisions of the Constitution relied upon for the challenge, the
grounds upon which the respective provisions are deemed to be in conflict and finally
the relief sought.

Political parties that wish to oppose the granting of an order sought in such an
application are required by rule 15 to notify the Registrar in writing within 15 days of
service of such application of their intention to oppose the application.

Generally, the referral procedure operates as an early-warning alert system for the
protection and vindication of aspects of the constitutional grundnorm and to ensure
that these norms are not threatened by a zealous legislative majority. It is a

53
mechanism which protects the constitutional state and reinforces the supremacy of
the Constitution. Furthermore, it is one measure of ―checks and balances‖ put in
place to ensure no branch of government can act without being checked.

Focus will shift to direct access. Where a matter does not fall in the ambit of
exclusive jurisdiction access to the Constitutional Court is closely circumscribed.
Even though the Constitutional Court shares concurrent jurisdiction with the High
Court and the Supreme Court of Appeal in all other matters outside those of
exclusive jurisdiction, it is extremely reluctant to allow parties to approach it. This is
similar to Section 85(1) of the Zimbabwean Constitution.

However, Rule 18 of the Rules of the Constitutional Court which was promulgated in
accordance with Section 167(6) (which provides that the rules or legislation must
allow a person to bring a matter directly to the Constitutional Court where it is in the
interests of justice and with leave of the court) provides litigants with a mechanism to
bypass the High Courts and access the Constitutional Court directly.

Under the international court, direct access is only allowed in exceptional

circumstances. Practitioners are thus required to show compelling reasons to be
granted direct access. The reason for this reluctance is to avoid premature
judgements as constitutional litigation strikes wide.

It is preferable that litigants make use of the court hierarchy in order to ventilate their
matter. In Bruce and Another v Fleecytex Johannesburg CC and Others,85 the
court said that ―experience shows that decisions are more likely to be correct if more
than one court has been required to consider the issues rose.‖ This attitude is
mirrored in Ngaka Modiri District Municipality 86 where it was established that the
more complex the issue, the less likely it is that direct access will be granted to an
applicant because more complex cases require as much ―ventilation‖ as possible
before reaching a final decision.

85
1998 (2) SA 1143 (CC) para 8.
86
Ngaka Modiri Molema District Municipality v Chairperson, North West Provincial Executive Comm ittee and
Others 2015 (1) BCLR 72 (CC) paras 8-11.

54
In general, as was said by the court in Transfer Rights Action Campaign,87 the
more important and complex issues in case, the more compelling the need for
Constitutional Court to be assisted by views of another Court.

The Constitutional Court can also act as an appeal court in some instances. In this
case, an appellant must first get leave from the court to appeal by showing that the
matter consists of an arguable point of law which holds some prospect of success.
88
The CC in the Boesak case, stated that an arguable point of law must be
established instead of a mere disagreement with the lower court‘s assessment of the
facts. The court will not grant leave in the latter scenario as no constitutional right is
engaged when an appellant merely disputes the findings of fact.

The appellant must also show that the matter is of general public importance
meaning that the matter transcends minor interests of the litigants. And lastly that it
is in the interests of justice; meaning it ought to be heard by the Constitutional Court.
An appellant must meet all the requirements, as established from the wording of the
Constitution - Section 167 (6) (b) (ii) reads ―National legislation or the rules of the
Constitutional Court MUST allow...‖ In the case of Khumalo v Holomisa it was said
that the question of what decisions may be appealed to the Constitutional Court is
89
governed by the Constitutional provision.

The procedure for an application for leave to appeal is set out in Rules 18, 19 and
20. Specifically, rule 18 provides that ―the procedure set out in this Rule shall be
followed in an application for leave to appeal directly to the Constitutional Court
where a decision on a constitutional matter, other than an order of constitutional
invalidity under s 172 (2) (a) of the Constitution, has been given by any court other
than the Supreme Court of Appeal.‖

Ultimately, Khumalo v Holomisa emphasised that the determinative criterion for

deciding when appeals should be entertained by the court is the ―interests of justice‖

87
Transfer Rights Action Campaign and Others v MEC, Local Government and Housing, Gauteng, and Others
(KwaZulu—Natal Law Society and Msunduzi Municipality as Amici Curiae) 2005 (1) SA 530 (CC).
88
S v Boesak 2001 (1) SA 912 (CC).
89
2002 (5) SA 401 (CC) para 7.

55
which may include an enquiry into the prospects of success in the appeal,90 – these
must be reasonable.(Boesak).

According to Section 167 (6), any person (including an organ of state) must be
allowed to appeal directly to the Constitutional Court from another court when it is in
the interests of justice and with leave of the court. In fulfilment of this, who may
appeal is regulated by Rule 19 (2) which reads ―a litigant aggrieved by the decision
of the court.‖ However, the decision in Campus Law Clinic (UKZN) v Standard Bank
opens the door for a non-litigant at a lower court level to ask and be granted appeal.
It is important that Rule 19(2) is understood with reference to Section 167(6).

GUIDING PRINCIPLES
Where a matter does not warrant direct access because it is within the exclusive
jurisdiction of the Constitutional Court, the Constitution grants the Constitutional
Court discretion to grant access or deny it. Generally, in determining whether to
grant an applicant access to the CC, the court is guided by the following principles:

INTERESTS OF JUSTICE
The Slip Knot case highlights interests of justice as the fundamental criterion to be
considered when a court is exercising its discretion. In Boesak it was held that a
finding that a matter is a constitutional issue is not decisive. Leave may still be
refused if it is not in the interests of justice that the court should hear the appeal.
Therefore the interests of justice remain fundamental.

In considering the interests of justice, ‗prospects of success,‘ although not the only
factor, are an important aspect of the enquiry.91 The interests of justice factor is there
to ensure that courts do not entertain each and every application for leave to appeal
brought to it.92

RIPENESS
What this means is that there must be an issue to determine. The powers granted to
the judiciary by the Constitution must be used to decide real and not hypothetical

90
Para 10.
91
Paras 11-12.
92
Para 30.

56
disputes. Accordingly, a court will only be willing to provide constitutional relief if
actual or imminent harm to a right is established. Ripeness is a question of timing,
the question is whether it is the right time to bring a matter before the court. The
business of the court is generally seen as retrospective meaning that courts deal
with problems that have already ripened not hypothetical ones.

In Ferreira v Levin NO 1996 (1) SA 984 (CC),93 the court states that the essential
flaw in the applicants‘ cases was one of timing. This is an illustration of the fatality of
a matter not being ripe enough to be brought before the Constitutional Court.

MOOTNESS
This is sometimes referred to as the ‗opposite of ripeness.‘ Mootness prevents the
court from waiting too long to decide on a matter. The doctrine of mootness was first
applied in Publishing v Minister of Safety and Security,94 where provisions of the
Publications Act 42 of 1974 were being attacked despite the fact that the act had
since been repealed and replaced with the Films and Publications Act 65 of 1996. It
was held that no one would benefit from an enquiry into the constitutionality of such
provisions.

Generally, a case is considered to be moot if it no longer affects the interests of the

parties or if it no longer presents an existing or live controversy. However, the
Constitutional Court retains discretion to decide whether a case is moot or not and
this discretion is exercised in the interests of justice.

CONCLUSION
The Constitutional Court is the highest court in the land and acts mainly as an
appellant court except in exceptional circumstances discussed above. Access to this
court is closely circumscribed in order to avoid clogging up the court. Decisions from
this court are considered final as it is the court of last instance in the country.

Finally, it must be noted that the jurisdiction of the Constitutional Court is limited
exclusively to constitutional matters and issues connected with decisions on
93
1996 (1) SA 984 (CC).
94
1997 (3) SA 514.

57
constitutional matters. However it can be argued that it is a difficult position to accept
in a Constitutional state (whereby any law must be tested in terms of the
Constitution) that so-called non constitutional issues can exist. This is because any
law which is inconsistent with the Constitution is invalid. This is contrary to the
narrow approach that has been taken by the Zimbabwean Constitutional Court.

It has also become apparent that, there is no equivalent Section 175(4) of the
Zimbabwean Constitution in South Africa. The referral that exists there are mainly
provided for in terms of Section 79 of the Constitution.

NAMIBIA VERSUS ZIMBABWE

In its current form, Namibian law consists of a Supreme Constitution, Roman–Dutch
law (which is our common law), certain pre-Independence South African statute law
(which, in terms of our Constitution, remains in force until repealed, amended by an
Act of Parliament, or declared unconstitutional by a competent court), and, over the
past 20 years, Namibia‘s own jurisprudence and legislative framework, which
includes customary law.

In its current form, Namibian law consists of a Supreme Constitution, Roman–Dutch

law (which is our common law), certain pre-Independence South African statute law
(which, in terms of our Constitution, remains in force until repealed, amended by an
Act of Parliament, or declared unconstitutional by a competent court), and, over the
past 20 years, Namibia‘s own jurisprudence and legislative framework, which
includes customary law. Namibia is a country plagued by inequalities, violence and
corruption like most of the countries in Africa due to its colonial history. The
promulgation of the Constitution in 1990 arose from the need to redress the Colonial
injustices. Although it is not the focus of this paper it is important that a brief outline
of Namibia‘s history is given to illustrate the areas the extent of inequalities and the
line of thinking prevailing in the minds of those that drafted the Constitution.

58
HISTORY
In 1883, Namibia was first ruled by a Germany military wing under Laundeshaupt
Mann Curt up until 1915 when Germany was defeated by South Africa.95 When
South Africa took over Namibia, it put it under a military government as well and it
became known as South West Africa.96 In 1925 the South-West Africa Constitution
was promulgated which introduced a Legislative Assembly that was racially biased
and oppressive. Ethiopia and Liberia being the only African countries that were
members of the United Nations tried to institute a claim in the World Court in 1960 on
the illegality of South Africa‘s occupation in the then South West Africa but this was
unsuccessful as the World Court held that they both lacked locus standi.97 In 1970
the ICJ finally made a pronouncement on the illegality of South Africa‘s occupation of
South West Africa, resulting in the latter being under pressure to withdraw from the
former.98

In 1989, a Constitutional Assembly elected in terms of Resolution 435 met on 29

November 1989 and different political parties in Namibia submitted different
Constitutional proposals with diverging views.99 The Constituent Assembly
unanimously decided that the draft constitution needed to adhere to the 1982
principles concerning the Constituent Assembly and the Constitution for an
Independent Namibia.100 The final Constitution was finally adopted on 9 February
1989 and this Constitution belonged to all Namibians, irrespective of their political
differences in the past according to some scholars although it has been argued that
on the ground, it was racially biased against the white Namibians. 101 It is against this
backdrop that certain comments were, made in the Kauesa v Minister of Home
Affairs and Others case,102 which was one of the first matters that were decided by
an independent Namibia. In the Kauesa case, it was held that:-

95
G Hage (2003) “The Drafting of Namib ia‟s Constitution” at 33.
96
Ibid.
97
Ibid.
98
C. Gretchen (1990). ―The Namibian Constitution – ex Africa aliquid novi after all?‖ South African Yearbook of
International Law at 78.
99
C Gretchen at 56.
100
Ibid.
101
C. Gretchen (1990). ―The Namibian Constitution – ex Africa aliquid novi after all?‖ South African Yearbook of
International Law at 67.
102
1995 NR 175 (SC).

59
“The letter and spirit of this compromise agreement was reconciliation. It envisaged
“corrective measures, but not revenge; not discrimination in reverse; not the mere
changing of roles of perpetrator and victim. The parties to the settlement relied for its
interpretation on the honour and integrity of the participants. 103

This goes to show the spirit of reconciliation and Ubuntu that was prevailing in the
mind of the drafters of the Constitution. The 1989 Constitution entrenched the
fundamental rights and freedoms of Namibians.

Articles 5 to 20 of the Constitution of Namibia contain the guaranteed fundamental

rights, while Article 21 sets out the fundamental freedoms that are protected under
the Constitution. Article 25 provides that no legislation may abolish or abridge any
right or freedom, nor may the Executive or any government agency do so unless
authorised by the Constitution.

Upon Independence and the adoption of the Namibian Constitution, the legal order
changed fundamentally. The Constitution makes it clear it is the Supreme Law of
Namibia. The Namibian Constitution is regarded as one of the most modern and
progressive basic laws worldwide, with constitutional principles a bill of rights, the
separation of powers and democratic order.104 The Constitution is the supreme law
of the land and the normative guideline for the entire citizenry and its government. It
goes further and unequivocally provides that the fundamental rights and freedoms
enshrined in it are to be respected and upheld by the Executive, Legislature and
Judiciary, and are enforceable by the courts in Namibia. Constitutions are an
affirmation of the relevance of the Rule of Law.105 The notion of the Rule of Law
implies a judiciary sufficiently independent of the legislature and the executive to
ensure that the country is governed according to the principles of the
Constitution.106This paper will now move on to outline the structure of the judiciary in
Namibia and highlight which courts have the power to make determinations on
Constitutional matters.

103
1995 NR 175 (SC).
104
G Hage (2003) “The Drafting of Namib ia‟s Constitution” p23.
105
C. Okpaluba (2000). ―Constitutionality of legislation relating to the distribution of governmental powers in
Namibia: A comparative approach‖ at 82.
106
C. Okpaluba (2000). ―Constitutionality of legislation relating to the distribution of governmental powers in
Namibia: A comparative approach‖ at 78.

60
THE STRUCTURE OF COURTS IN NAMIBIA

THE LOWER COURTS

The Lower Courts are established under Article 78(1) of the Namibian Constitution .
Currently, the Lower Courts in Namibia comprise the magistrates‘ courts and the
community courts which are specifically established by the Magistrates‘ Courts Act,
1944 (No. 32 of 1944) and the Community Courts Act, 2003 (No. 10 of 2003),
respectively. The District Labour Court discussed above is also classified as a lower
court. Magistrates‘ courts in Namibia may be classified into regional, district,
subdistrict divisions,107 and periodical courts.108 Magistrates‘ courts are courts of
record, and their proceedings in both criminal cases and the trial of all defended civil
actions are carried in open court.109 The territorial jurisdiction of a magistrate‘s court
is the district, sub-district or area for which such court is established, and a court
established for a district has no jurisdiction in a sub-district.110

Section 28 of the Magistrates‘ Courts Act addresses the jurisdiction of the

Magistrates‘ Courts in respect of persons, it provides that:-

A magistrate‟s court shall have jurisdiction over the following persons:

(a) any person who resides, carries on business or is employed within the district;

(b) any partnership which has business premises situated or any member whereof
resides within the district;

(c) any person whatever, in respect of any proceedings incidental to any action or
proceeding instituted in the court by such person or himself;

(d) any person, whether or not he resides, carries on business or is employed within
the district, if the cause of action arose wholly within the district;

(e) any party to interpleader proceedings, if –

(i) the execution creditor and every claimant to the subject matter of the

107
Section 2 (f) (2) (a) – (iv), Magistrates‘ Courts Act.
108
Section 26 Magistrates‘ Courts Act.
109
Section 5, Magistrates‘ Court Act.
110
Section 26 (1) and (2), Magistrates‘ Court Act.

61
proceedings reside, carry on business, or are employed within the district; or

(ii) the subject-matter of the proceedings has been attached by process of the court;
or

(iii) such proceedings are taken under sub-section (2) of section sixty-nine and the
person therein referred to as the “third party” resides, carries on business, or is
employed within the district; or

(iv) all the parties consent to the jurisdiction of the court;

(f) any defendant (whether in convention or reconvention ) who appears and takes

no objection to the jurisdiction of the court;

(g) any person who owns immovable property within the district in actions in respect
of such property or in respect of mortgage bonds thereon

It is clear that the Magistrates Court does not have the jurisdiction to hear
determinations of the constitutionally related matters. This is within the competence
of the High Court and the Supreme Court as envisaged in the Constitution.

THE HIGH COURT

The High Court consists of the Judge-President and such additional judges as the
President, acting on the recommendation of the Judicial Service Commission, may
determine.111 The High Court Act,112 provides a judge holding office in a permanent
capacity shall retire from office on attaining sixty-five (65) years. The judgement of
the majority of the judges of the full court constitutes the judgment of the court, but
where the judgement of a majority of the judges of any such court are not in
agreement, the hearing is adjourned and commenced de novo before a new court
constituted in such manner as the Judge-President, or in his or her absence, the
senior available judge may determine.113

111
Article 80 (1) Namibian Constitution
112
Section 8 of the High Court Act of Namibia.
113
Section 14 (1), High Court Act.

62
JURISDICTION OF THE HIGH COURT
The High Court is a superior court of record and its jurisdiction is provided for by both
the Constitution and the High Court Act. The Constitution vests the High Court with
both original and appellate jurisdiction,114and all proceedings in the High Court are to
be carried on in open court,115provided that the court may exclude the press and/or
the public from all or any part of the trial for reasons of morals, the public order or
national security. It is situated permanently in Windhoek, and goes on circuit in
Gobabis, Grootfontein, Oshakati, Swakopmund. Some scholars have raised
concerns over the location of the High Court. If the judiciary is separate from the
central government, whu is it that the High Court at Windhoek the main office and
116
the High Court at Oshakati ‗a satellite court‘? . It has been argued that this is
strategic to ensure that the other branches of government maintain a close eye on
the judiciary and also seems to suggest that the judiciary is independent on paper
but not in reality.

JURISDICTION TO HEAR CONSTITUTIONALLY- RELATED MATTERS

Under its original jurisdiction, the court has the power to hear and adjudicate upon all
civil disputes and criminal prosecutions, including cases which involve the
interpretation, implementation and upholding of the Constitution and the fundamental
rights and freedoms guaranteed thereunder,117 including the power to overrule
legislation where legislation is inconsistent with or ultra vires either the Constitution
or enabling legislation.118 The case of Federal Convention of Namibia v Speaker,
National Assembly of Namibia & Others,119 demonstrated from the outset that the
High Court of Namibia was fully equipped to implement the provisions of the
Constitution of Namibia. In the Federal Convention of Namibia case the court did
not hesitate to direct the Speaker of the National Assembly to exercise his functions
in terms of Articles 48 (1) (b) of the Constitution to remove a person as a Member of
the National Assembly.

114
Article 80 (2), Namibian Constitution.
115
Section 13 High Court Act.
116
N Gino J (1995) “Constitutional Rights in Namibia: A comparative analysis with International Human Right,‖
p29.
117
Article 80 (2), Namibian Constitution.
118
Article 25 (1) (a) Namibian Constitution.
119
1994 (1) SA 177 (NM).

63
A Case in point is that of Kauesa v Minister of Home Affairs,120 where the capacity
of the High Court to protect fundamental human rights was tested. In the Kauesa
case, a police officer challenged a police regulation that prohibited members of the
force to publicly criticise top leadership. The plaintiff who was a police officer
participated in a televised discussion on police-related issues. During the debate, the
police officer criticised the top leadership of the force, which resulted in him being
brought before a disciplinary hearing at which he was found guilty.121

In the Kauesa case, the court held that the Preamble was an intergral part of the
Constitution. The constitution was interpreted broadly, liberally and purposively by
the High Court judge of Namibia. The jurisprudence in the Kauesa case shows the
backbone of Constitutional Litigation in Namibia and how the High Courts are
equipped to enforce fundamentally protected rights in the Constitution. The Kauesa
case was the first landmark decision on freedom of expression and speech. The
court declared Regulation 58 (32) of the Police Act,122 which inhibited members of
the police force from commenting unfavourably in public upon the administration of
the force. Regulation 58 (32) was declared unconstitutional as it was inconsistent
with Articles 21 (1) and (2) of the Constitution which provide that everyone has the
freedom of expression.

The Constitution,123 was interpreted by the High Court of Namibia in the case of
Djama v Government of the Republic of Namibia and Others,124 the ratio
decidendi which was later on applied in the case of Government of the Republic of
Namibia v Sikunda,125 where the court ordered the release of a suspected
prohibited person as this was an infringement of his constitutionally enshrined right.
This shows a clear move away from the colonial system where Namibian citizens
were detained, tortured and incarcerated arbitrarily. It is a clear example of judicial
activisim by the courts of independent Namibia to protect the citizens from arbitrary
arrest and detention. Another case in point that further illustrates how the

120
1995 (1) BCLR 1540 (NmS)
121
Ibid 139 C-E.
122
No 19 of 1990, published under Government Notice R 203, Government Gazette 791 of 14 February 1964.
123
Articles 11 and 12 of Namibian Constitution.
124
1992 NR 37 (HC).
125
2002 NR 203 (SC).

64
Constitution is the rule of law is that of Amakali v Minister of Prisons and
Correctional Services,126 the High Court of Namibia ordered the release of Mr
Amakali who was being kept in jail by the prison authorities after he had already
served his prison sentence.

In the case of S v Katamba,127 the High Court did not hesitate to abolish the
cautionary rule in terms of sexual offences. In upholding the right to a fair trial, the
High Court held that it is peremptory for a minor to be assisted by a parent/guardian
as was seen in the case of S v M.128 Sentences of imprisonment imposed by the
lower courts in excess of 3 months are subject to automatic review by the High Court
of Namibia in order to ensure that justice is done as it is common cause that
Magistrates are conversant with the laws that they are required to apply. 129

THE SUPREME COURT

Article 79(1) of the Constitution provides that the Supreme Court should consist of a
Chief Justice and such additional judges as the President, acting on the
recommendation of the Judicial Service Commission, may determine, while Article
79(2) adds that the Supreme Court is to be presided over by the Chief Justice. It
should also be mentioned that no judge is permitted to sit as a judge of the court
over a case to whose decision s/he was a party in a lower court.

All appointments of judges to both the Supreme Court and the High Court are to be
made by the President on the recommendation of the Judicial Service Commission.
In the case of S v Zemburuka,130 the court ruled that the appointments of acting
judges should be subjected to the same procedure as their tenured counterparts. All
Judges so appointed are to hold office until the age of Sixty-Five, but the President is
entitled to extend the retiring age of any judge until Seventy. 131 A judge can be
removed from office prior to the expiry of his/her tenure, but only by the President

126
2000 NR 221 (HC).
127
1999 NR 348 (SC)
128
2006 (1) NR 156 (HC)
129
S v Moses Garoeb 2004 (6) NCLP
130
2003 NR 200.
131
Article 82 (4), Namibian Constitution.

65
acting on the recommendation of the Judicial Service Commission, and only on the
grounds of mental incapacity of gross misconduct.132

APPELLANT JURISDICTION OF THE SUPREME COURT

It vests in the Supreme Court the inherent jurisdiction which vested in the Supreme
Court of South West Africa immediately prior to the date of independence, including
the power to regulate its own procedures and to make court rules for that purpose. 133
The Supreme Court is primarily a court of appeal and its appellate jurisdiction covers
appeals emanating from the High Court, including appeals which involve
interpretation, implementation and upholding of the Constitution and the fundamental
rights and freedoms guaranteed thereunder.134 It is the highest court of appeal in
Namibia and its decisions are final.135 It should also be added, however, that in the
exercise of the prerogative of mercy, the President is empowered to pardon or
reprieve offenders, either unconditionally or subject to such conditions as he/she
may deem fit.136The Supreme Court is not bound by any judgment , ruling or order of
any court that exercised jurisdiction in Namibia prior to or after independence.137

The Constitution further vests in Parliament the power to make legislation providing
for the appellate jurisdiction of the Supreme Court.138 Under the relevant provisions
of the Supreme Court Act, 1990 (No. 15 of 1990), the Supreme Court is vested with
unlimited appellate jurisdiction over appeals from any judgment or order of the High
Court; and any party to any such proceedings before the High Court, if dissatisfied
with any such judgment or order, has a right of appeal to the Supreme Court.139 In
the exercise of its appellate jurisdiction, the Supreme Court has the power to receive
further evidence, either orally or by deposition before a person appointed by the
court, or to remit the case for further hearing to the court of first instance or to the
court whose judgment is the subject of the appeal, with such instructions relating to

132
Article 84 (1) and (2), Namibian Constitution.
133
Article 79 (2), Namibian Constitution.
134
Article 79 (2) Namibian Constitution.
135
Section 17 (1), Supreme Court Act, 1990 (No. 15 of 1990).
136
Article 33 (2) (d), Namibian Constitution
137
Section 17 (2) Supreme Court Act of 1990.
138
Article 79 (4) Namibian Constitution.
139
Section 14 (1), Supreme Court Act.

66
the taking of further evidence or any other matter as the Supreme Court may deem
necessary. The Supreme Court is also empowered to confirm, amend or set aside
the judgment or order that is the subject of the appeal, and to give any judgment or
make any other order which the circumstances may require.140 Records indicate that
the Supreme Court‗s jurisdiction to amend or set aside a judgment or order of a
lower court is used sparingly and on very compelling grounds. As a rule, in
determining civil appeals from a decision of the High Court, an appeal should take
the form of a re-hearing of the record, but not a retrial. However, if it appears to the
court that there was insufficient evidence before the trial judge, a retrial will be
ordered.

SUPREME COURT AS COURT OF FIRST INSTANCE.

A decision of the Supreme Court is binding on all other courts of Namibia and all
persons in Namibia unless it is reversed by the Supreme Court itself, or is
contradicted by an Act of Parliament lawfully enacted,141 in conformity with the
principles of legislative sovereignty. Article 81 is a codification of the stare decisis
rule, a well-known rule of the common law, which deals with the relevance and legal
force of judicial precedents. The Supreme Court is the Apex court in all legal
disputes whether they involve the interpretation of legislation, Constitutional
provisions or common law. The Supreme Court has original jurisdiction over matters
referred to it for decision by the Attorney-General under the Constitution, and with
such other matters as may be authorised by Act of Parliament. 142In this sense,
therefore, it can be concluded that the Supreme Court indeed has original jurisdiction
over constitutional matters, but that this original jurisdiction is not exclusive to the
Supreme Court because the High Court is also vested with original jurisdiction over
constitutional matters. Contrary to the other jurisdictions in Southern Africa, such as
the South Africa and Zimbabwe where there is a Constitutional Court, the Namibian
Constitution does not create a separate Constitutional Court per se, but the Supreme
Court can constitute itself into a Constitutional Court.143 By virtue of the provisions

140
Section 19 (a) and (b), Supreme
141
Article 81, Nam ibian Constitution
142
Article 79 (2), Namibian Constitution.
143
S K Amoo, (year) The Structure of the Namibian Judicial System and its relevance for an independent
judiciary p 73.

67
relating to the original jurisdiction of the Supreme Court under the Supreme Court
Act of 1990,144 whenever any matter is referred for a decision to the Supreme Court
by the Attorney-General, the latter is entitled to approach the Supreme Court directly,
without first instituting any proceedings in any other court, on application to it, to hear
and determine the matter in question.145

The case of Ex Parte: Attorney General In re: Corporal Punishment by Organs

of State,146 illustrates the point that the Supreme Court was approached as a court
of first instance. This case was of the first matters the Supreme Court had to define
the right to dignity as guaranteed by the Constitution of Namibia. 147 This matter was
referred to the court by the Attorney General in terms of Article 87(c) read with
Article 79 (2) of the Constitution which provide as follows respectively:

Article 87 (c) states that, “ The powers of the Attorney General include …..to take all
action necessary for the protection and upholding of the Constitution;”

Article 79 (2) states that, ―

―The Supreme Court shall be presided over by the Chief Justice and shall
hear and adjudicate upon appeals emanating from the High Court, including
appeals which involve the interpretation, implementation and upholding of this
Constitution and the fundamental rights and freedoms guaranteed thereunder.
The Supreme Court shall also deal with matters referred to it for decision by
the Attorney-General under this Constitution, and with such other matters as
may be authorised by Act of Parliament.‖

In giving value to the Constitutionally entrenched right of human dignity, and in

explaining how corporal punishment was a violation of this right, Mahomed JA held
that,

144
Section 15 Supreme Court Act of 1990
145
Section 15 (1) Supreme Court Act of 1990.
146
1991 NR 178 (SC)
147
Find Specific Section.

68
 “…. The one major consideration in arriving at a decision involves an enquiry
into the generally held norms, approaches, moral standards and aspirations
and a host of other established beliefs of the people of Namibia.”148

Using Article 8 of the Constitution of Namibia as the barometer legislative provisions

relating to institutional corporal punishment were declared unconstitutional. The court
concluded that corporal punishment, whether inflicted through the criminal penal
system or in the schools constituted degrading and inhuman punishment within the
meaning of Article 8(2)(b) of the Namibian Constitution.

It is important to include Article 81 of the Constitution which provides that:-

―A decision of the Supreme Court shall be binding on all other Courts of Namibia and
all persons in Namibia unless it is reversed by the Supreme Court itself, or it is
contradicted by an Act of Parliament lawfully enacted‖

Parliament is empowered to contradict Supreme Court decisions by lawfully enacting

legislation to that effect. For Parliament to lawfully contradict constitutional decisions
of the Supreme Court so that they lose their binding force, it is a necessary condition
that they amend the Constitution. When Parliament overrules the Supreme Court on
a Constitutional matter, it amounts to an ostensible constitutional amendment.

REVIEW POWERS OF THE SUPREME COURT

The Supreme Court also has review jurisdiction over the proceedings of the High
Court or any lower court, or any administrative tribunal or authority established or
instituted by or under any law.149The Supreme Court may exercise this jurisdiction ex
mero motu (of the court‘s own accord) whenever it comes to the notice of the court
or any judge of that court that an irregularity has occurred in any proceedings,
notwithstanding that such proceedings are not subject to an appeal or other
proceedings before the Supreme Court. This review jurisdiction, however, does not

148
1991 NR 178 (SC) 197.
149
Section 16 (1) Supreme Court Act of 1990.

69
confer upon any person any right to institute any such review proceedings in the
Supreme Court as a court of first instance.150

The Supreme Court in the case of Minister of Health and Social Services v
Lisse,151 in taking a positivism approach in interpreting Article 18,152 ordered the
Minister of Health and Social Services to issue an authorisation to a medical doctor
to use the facilities at the Windhoek State Hospital. Juxtaposing this case with that of
Kerry McNamara Architects Inc & Others v Minister of Works, Transport and
Communication & Others,153 were the Supreme Court did not uphold Article 18,154
and it decided that a derivative right was not enough to give a person locus standi to
challenge the award of a tender. This Supreme Court applied the direct and
substantial interest test which was developed in the pre-constitutional era instead of
taking a pragmatic approach to uphold the values of the Constitution.

The Constitution empowers the Supreme Court to strike out any pieces of legislation
that are contrary to the provisions of the Constitution. The land mark decision of
Africa Personnel Services (Pty) Ltd v Government of the Republic of Namibia
and Others,155 where the learned judges of the Supreme Court struck down section
128 of the 2007 Labour Act,156 which was intended to criminalise labour hire
services in Namibia. The court held that this piece of legislation was contrary to the
provisions of the Constitution in particular Article 21 (1) (j) which states that , ― all
persons have the right to practise any profession or carry on any occupation trade or
business.‖

However it is important to note that there have been instances where the Supreme
Court has differed with the High Court as to whether an arrest and detention was
unlawful as was seen in the case of Getachew v Government of the Republic of
Namibia, 157which was referred to the Supreme court.

150
Section 16 (2) Supreme Court Act of 1990.
151
2006 (2) NR 739 (SC).
152
Constitution of Namibia.
153
2000 NR 1 (HC).
154
Constitution of Namibia
155
Unreported Case No. SA 51/2008.
156
No 11 of 2007.
157
(SA 21/2006) [2008] NASC 4 (15 April 2008)

70
UPHOLDING FUNDAMENTAL RIGHTS

Chapter 3 of the Constitution of Namibia embodies fundamental human rights

including the rights to dignity and equality. The Namibian Supreme Court has had to
make determinations upholding these rights and repealing any legislation that is
contrary to these absolute rights. With reference to case law, I will examine the
extent to which the Supreme Court has managed to uphold these rights. In the
Frank,158 case, the Supreme Court hearing the matter on appeal from the High Court
confirmed the refusal of Frank‘s Application for a permanent citizenship application
on the basis that same-sex relationships are considered unconstitutional unlike in the
South African jurisdiction. This goes to show that the in upholding the provisions of
the Constitution, the Namibian Supreme Court does not recognise the right to
freedom from discrimination on the basis of gender.

In making its determination, the Supreme Court in Namibia takes consideration of

cumulative factors such as the contemporary norms, aspirations, expectations,
sensitivities, moral standards, relevant established belief, social conditions,
experiences and perceptions of the Namibian people.159 The national institutions that
inform the court about the state of affairs of accepted values include Parliament; the
court; tribunal authorities; common law; statute law and tribal law; political parties;
news media and established Namibian churches. It is important to note that Frank
was eventually granted the desired permit by applying for it in accordance with the
formal requirements of the law, which points towards stereotyping and prejudice
160
against same-sex couples in Namibia. This modest and self-restricting approach
by both the High Court and the Supreme Court of Namibia respects the limits of law
and how the courts seem to be bound by public opinion and accepted standards
which is a hindrance to its mandate to uphold the Constitutionally enshrined rights to
equality and human dignity as envisaged in the Namibian Constitution. 161

158
(SA 8/99) [2001] NASC 1 (05 March 2001)
159
C. Gretchen (1990). ―The Namibian Constitution – ex Africa aliquid novi after all?‖ South African Yearbook of
International Law 88.
160
McKaiser, E. 2005. “Same-sex ruling: Same old doub ts”. Business Day, 13 Decemb er
161
McKaiser, E. 2005. “Same-sex ruling: Same old doub ts”. Business Day, 13 Decemb er

71
The High Court has adopted a crucial social stance relating to children and violence
against women. In the case of S v Gaweseb,162 the court held that,:-

“Systemic failures to enforce maintenance orders have a negative impact on

the rule of law. The courts are there to ensure that the rights of all are
protected. The judiciary must endeavour to secure for vulnerable children and
disempowered women their small but life-sustaining legal entitlements. If court
orders are habitually evaded and defied with relative impunity the justice
system is discredited and the constitutional promise of human dignity and
equality is seriously compromised for those dependent on the law. It is a
function of the State not only to provide a good legal framework but to put in
place systems that will enable these frameworks to operate effectively. Our
maintenance courts and the laws that they implement are important
mechanisms to give effect to the rights of children protected by s 28 of the
Constitution. Failure to ensure their effective operation amounts to a failure to
protect children against those who take advantage of the weaknesses of the
system.”

This shows that the High Court is doing a commendable job in upholding the rights of
classes of people that were previously disadvantaged before the promulgation of the
Constitution.163

ADMINISTRATIVE JUSTICE AND CONSTITUTIONALISM

Administrative justice encapsulates the means by which every individual in Namibia

has legal redress in the event of any action, or omission, by an administrative agent
that is perceived to be unjust or unreasonable.164 In the case of Kessl v Ministry of
Lands and Resettlement & Other and Two Similar Cases,165 the High Court
reinforced its previous rulings which state that everyone has the right to a hearing
before any decision that affects that persons rights is made. The High Court also has

162
2007 (2) NR 600 (HC)
163
LaFont, Suzanne & Dianne Hubbard (Eds). 2007. Unravelling tab oos: Gender and sexuality in Namibia.
164
G Coleman and E Schimming- Chase (2010) Constitutional Jurisprudence in Nambia since Independence
P206
165
2008 (1) NR 167 (HC).

72
the jurisdiction to enquire into the fairness of any administrative action as was seen
in the case of Kaulinge v Minister of Health and Social Services,166 and this is of
particular importance because it shows that the rule of law is thriving in Namibia and
it‘s a bold move away from the pre-independence dispensation that vested
unquestionable authority to administrative bodies.

DETERMINATIONS ON CUSTOMARY LAW

The Constitution of the Republic of Namibia is one of the first constitutions in Africa
to take a clear stand on the position of customary law. It is placed on the same level
of recognition as the colonially inherited common law of the country. The Namibian
Constitution has profoundly affected common law and customary law as well as
legislation that adversely affects the individual rights and freedoms. Article 66,167 of
the Constitution provides that customary law is recognised in Namibia in as much as
it remains in line with the provisions of the Constitution of Namibia. The case of S v
Glaco,168 was decided by the High Court of Namibia in 1993. In this case, a young
San woman was found guilty of the charge of murder of her newly born baby. This
case is of relevance when addressing the interface between state law and customary
law in Namibia. The court concluded the case as follows:-

“For the rest of her life she must carry in her heart the knowledge that she
terminated the life of her little boy. Can there be a greater punishments?.....
Her suffering is her deterrent. She needs no sentence to remind her of the
horror that she experienced.”169

Roman Dutch-Law and Christian values were the basis of the judgement in finding
the accused guilty. However this ignored the language barrier fact and took a
recourse to reasoning that was of no relevance to the accused person and leaves
one to wonder if the administration of justice caters for the minorities in Namibia such
as the marginalised San community. The San community faces a language barrier
and even up until the time the judgment was handed down, the accused person still
did not comprehend what was going on. Alott argues that even in light of the new

166
2006 (1) NR 377 (HC).
167
Constitution of Namibia
168
1993 NR 441
169
1993 NR 441 at 149.

73
dispensation, the marginalised communities in Namibia cannot find redress in the
Constitution which makes the law ineffective or rather biased towards the drafters.

CONCLUSION
This chapter has looked closely at the structure of the judicial system in Namibia and
how this has been greatly influenced by the promulgation of the Constitution. It has
highlighted that the Supreme Court is the apex court in Namibia. The Constitution,
sets out the Supreme Court‘s jurisdiction, ratione materia, stipulating that the
Supreme Court has the jurisdiction to hear appeals emanating from the High Court,
including appeals which involve the interpretation, implementation and upholding of
provisions of the Constitution. If the court has to look at whether the provisions of a
certain piece of legislation impacts on a right listed in the Bill of rights, the impugned
provision will be struck down. These rules should be understood against the values
underlying the Constitution, requiring the court to embrace substantive reasoning
when interpreting constitutional provisions.

KENYA
The Judiciary is one of the three State organs established under Chapter 10. Article
159 of the Constitution of Kenya (hereafter referred to as the Constitution)
establishes the Judiciary as an independent custodian of justice in Kenya. 170

“Judicial authority is derived from the people and vests in, and shall be exercised by,
the courts and tribunals established by or under this Constitution”171

In Kenya, the courts under the Constitution operate at two levels which are the
Superior courts and Subordinate courts. According to the Constitution, the system of
courts comprises the Supreme Court at the apex, the Court of Appeal followed by
the High Court and the special courts under Article 162(2). The ‗status
courts‘ established under Article 162(2) is the Employment and Labour relations
court and the Environment and Land court. These courts consist of what was above
referred to as the Superior Courts. According to Article 169, the subordinate courts
comprise the Magistrates courts, the Kadhis‘ courts, the Courts Martial and any other

170
The Constitution of Kenya [Kenya], 27 August 2010
171
Article 159 of The Constitution of Kenya.

74
court or local tribunal as may be established by an Act of Parliament except the
status courts.

The Supreme Court of Kenya is established under Article 163 of the Constitution. It
comprises of Seven judges; the Chief Justice, who is the president of the Court, the
Deputy Chief Justice, who is the deputy to the Chief Justice and the vice-president of
the Supreme Court and five other judges. The Court of Appeal is established under
Article 164 of the Constitution. The Court of Appeal consists of judges, being not
fewer than twelve, as may be prescribed by an Act of Parliament and his court has
jurisdiction to hear appeals from the High Court; and any other court or tribunal as
prescribed by an Act of Parliament.172

The High Court is established under Article 165, the Court has a Principal Judge,
who is elected by the judges of the High Court from among themselves. The Court
system has been decentralized with the Supreme Court and the Court of Appeal
having their own Presidents and the High Court having a Principal Judge as heads of
the respective institutions.

The Superior Courts also include the Environment and Land Court as well as the
Employment and Labour Relations Court which are courts of equal status as the
High Court.173

THE CONSTITUTIONAL COURT IN KENYA

The Constitution of Kenya, 2010 makes no mention of the establishment of a
‗Constitutional Court‘. There is no institution that goes by the name of a
Constitutional Court in the hierarchical structures of the Kenyan Judicial system. The
question of constitutional jurisdiction then arises; which of the courts within the
Kenyan judicial system has the jurisdiction to hear constitutional matters? Article
165(1) of the Constitution establishes the High Court and vests in it vast powers
including the power to

“determine the question whether a right or fundamental freedom in the Bill of

Rights has been denied, violated, infringed or threatened‟ and the jurisdiction
„to hear any question respecting the interpretation of this Constitution.”
172
Article 164(3) of The Constitution of Kenya.
173
https://www.judiciary.go.ke/about-us/overview/.

75
Article 23 of the Constitution which also provides for the jurisdiction says that;

“The High Court has jurisdiction, in accordance with Article 165, to hear and
determine applications for redress of a denial, violation or infringement of, or
threat to, a right or fundamental freedom in the Bill of Rights.”

Based on these provisions above, it would follow that every High Court judge in
Kenya has the jurisdiction to discharge functions falling under Article 165, which
include making determinations on Constitutional matters as they are enabled by the
Constitution to determine questions relating to fundamental rights enshrined in the
Bill of Rights.

WHY THERE IS NO CONSTITUTIONAL COURT

The proposal for a Constitutional Court had been included in the Harmonised Draft
Constitution. The rationale for establishment of a separate Constitutional Court) was
that first it would be a court presided over by judges that have specialised
experience in constitutional law and human rights and who would concentrate on
matters regarding interpretation and implementation of the bill of rights. Second, it
was envisioned that the specialized court would permit the speedy determination of
disputes arising out of presidential election and that the court would ensure effective
resolution of disputes between the national and devolved governments amongst
many other reasons.174 However, concerns were raised on the role of the
Constitutional Court relative to other courts with some members of the public opining
that a Constitutional Court was unnecessary. As such, all reference to the
establishment of a Constitutional Court were deleted from the proposed Constitution.
Recommendations of the Parliamentary Select Committee (PSC) regarding the
functions of the High Court, were that it would assume the functions of the
Constitutional Court.175

It is unequivocally clear that the ultimate intention of the framers of the Constitution
of Kenya was to do away with a special distinct court referred to as a ‗ Constitutional
Court‘ and it effectively did so as the court was never established. Further, it dawns
174
http://kenyalaw.org/kenyalawblog/a-case-of-mistaken-identity-demystifying-the-constitutional-court-in-kenya-
2/#_edn3.
175
http://kenyalaw.org/kenyalawblog/a-case-of-mistaken-identity-demystifying-the-constitutional-court-in-kenya-
2/#_edn3.

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that the functions that had earlier been earmarked for the proposed specialised court
were largely transferred to the existent High Court.176

CASE LAW ILLUSTRATING THE HIGH COURT’S CONSTITUTIONAL

JURISDICTION

In the case of Equity Bank Limited v. West Link MBO Limited 177 ,the discussed
the inherent power that the courts possess. Inherent power is the authority
possessed by a court implicitly without it being derived from the Constitution or
statute. Such power enables the Judiciary to deliver on their constitutional mandate.
Inherent power is therefore the natural or essential power conferred upon the court
irrespective of any conferment of discretion.

The court in the case of Robert Mwangi v Shepherd Catering Limited &
Others178 ,emphasized the following; ―If a party is dissatisfied with a decision or
conduct of a judge sitting in any Division or station of the High Court, and alleges
that there has been a violation of his or her constitutional rights, the alleged violation
must be raised before the judge of the High Court seized of the matter. If the party is
still not happy with the decision of that Court, then his or her remedy lies in the Court
of Appeal, and from there, the Supreme Court, as provided in the Constitution and
the relevant legislation.‖

The court in this case of Robert Mwangi v Shepherd Catering Limited & Others
illustrated that when a litigant has an issue relating to an alleged violation of their
constitutional rights, or of a right enshrined in the Bill of Rights the appropriate forum
is the High Court as the Constitution in Article 165 bestows constitutional jurisdiction
on the High Court.

In the case of Rodgers Mema Nzioka v AG,179 Justice NYAMU weighed in on the
issue of applicants trivialising the Constitutional jurisdiction of the court by holding

176
Ibid.
177
Civil Application 78 0f 2011 (UR. 53/2011) para 3.
178
Nairobi Petition No. 84 of 2012 para 29.
179
Nairobi Petition No. 613 of 2006.

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that ―constitutional jurisdiction should not be trivialised and should be confined to
purely constitutional matters. Where the ordinary law provides for relief that relief
must be pursued.‖ Because the High Court deals with all matters, it is important that
where the ordinary law can be applied in order to provide relief, it must be so
applied. Applicants must not rush to claim constitutional jurisdiction in matters were
the ordinary law can be applied. Where there exists sufficient and adequate
mechanisms to deal with a specific issue or dispute by other designated
constitutional organs. The constitutional jurisdiction of the High Court should not be
invoked until such mechanisms have been exhausted. In the case In Re Francis
Gitau Parsimei & others v National Alliance Party and others,180 the court highlighted
the principle that ―where the Constitution and or a statute establishes a dispute
resolution procedure, then that procedure must be used first.‖ It was emphasised in
this case that one of the important tenets of the concept of the rule of law is that the
High Court, before exercising its jurisdiction under Article 165 of the Constitution in
general, must exercise restraint. It must first give an opportunity to the relevant
constitutional bodies or State organs to deal with the dispute under the relevant
provision of the parent statute. If the court were to act in haste, it would be
presuming bad faith or inability by that body to act.

Furthermore, a High court may not determine matters falling squarely under the
jurisdiction of the ‗status courts‘ namely the Employment and Labour Relations Court
(read Industrial Court) and the Land and Environment Court. These are the courts
established under Article 162(2) and whose jurisdiction is spelt out in the respective
constitutive statutes.

REQUIREMENTS FOR BRINGING A CONSTITUTIONAL MATTER

Of particular importance to note when approaching the court with a Constitutional
issue, there needs to be a legitimate issue of interpretation or application of the
Constitution. This was highlighted in the case of Erad Suppliers and General
Contractors Limited v. National Cereals and Produce Board.181

180
Nairobi Petition No. 356 of 2012(unreported).
181
Supreme Court Petition No. 5 of 2012.

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The case of Peter Oduor Ngoge v. Hon. Francis Ole Kaparo and Five Others,182
the Supreme Court held that the material cause did not fall within the scope of
―interpretation or application of the Constitution.‖ The court made emphasis that
courts need to exercise its powers strictly within the jurisdictional limits prescribed
and when dealing with matters of Constitutional interpretation, there must be a
legitimate issue of application of the Constitution.

COMPARISON TO OTHER JURISDICTIONS

The structure of courts in Kenya is distinguishable from that of other jurisdictions
whose Constitutions explicitly provide for a separate Constitutional Court with its own
jurisdiction. South Africa is one such example whose Constitution singles out the
establishment of a standalone ‗Constitutional Court‘ identifying it as the court at the
apex of the South African judicial system.183 The Constitution of South Africa
specifically establishes the Constitutional Court as the highest court in all
constitutional matters and provides for its composition and mandate. 184 Section 167
of the Constitution of the Republic of South Africa also provides for functions within
the exclusive domain of the Constitutional Court such as matters to do with disputes
between organs of state in the national or provincial sphere concerning the
constitutional status, powers or functions of any of those organs of state. The
Constitutional Court also has the mandate to decide on the constitutionality of any
parliamentary or provincial Bill and the constitutionality of any amendment to the
Constitution, amongst other functions articulated in Section 167.

The Ugandan approach to a Constitutional Court is different from the South African
one. According to Article 137 of the Constitution of Uganda (1995).

“Any question as to the interpretation of the Constitution shall be determined

by the Court of Appeal sitting as the Constitutional Court”.

The Constitution of Uganda alludes to a ‗make-shift‘ Constitutional Court to be

constituted from the existing Appellate Court when the need arises, unlike in South
Africa where the Constitutional Court is a standalone entity

182
Supreme Court Petition No. 2 of 2012, para 26.
183
Section 166 of the Constitution of the Republic of South Africa, 1996.
184
Section 167 of the Constitution of the Republic of South Africa, 1996.

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CHAPTER 5

CONCLUSION AND RECOMMENDATIONS FOR ZIMBABWE.

This study looked at the law that regulates referral of matters to the Constitutional
Court which emanate from Section 175(4) of the Constitution. Further, the practice
and procedure of the Constitutional Court was canvassed. Chapter 3 of the study
explored the challenges that are associated with constitutional referrals in our
jurisdiction. It is apparent that Zimbabwe has a fairly adequate legal regime for
constitutional referrals. There is however few areas of concern which will must be
attended to so as to have proper machinery as regards to the subject of
constitutional referrals.

The study also looked at the practice and procedure on how human rights are
protected in South Africa, Kenya and Namibia. It is key to note that Zimbabwe‘s laws
on referral of matters to the Constitutional Court are fairly adequate as already
indicated.

As shown in Chapter 3 of the study, what are problematic are the attitude, practice
and procedure which the Constitutional Court has adopted. The MALABA Bench
has for several times avoided dealing with Constitutional matters on referral on the
basis of technicalities. The court has capriciously adopted the principles of
avoidance and subsidiarity. This has been an inroad towards the implementation of a
wide and progressive declaration of rights that Zimbabwe has.

The Constitutional Court has even declined to exercise its jurisdiction on even
reasons that a wrong form was used or that the questions for referral has not been
properly couched. This with respect is against the spirit of the Constitution in itself.
This paper also demonstrated that sometimes it takes forever for a constitutional
referral to be heard in the Constitutional Court despite the fact that a right duly
protected in terms of the constitution will be at stake. It was succinctly demonstrated
that judiciary officers are loath to refer matters to the Constitutional Court mero
motu despite that the law perfectly allows it. The next challenge which was
canvassed is that sometimes it takes forever for the judgment on a referral to be
delivered by the Constitutional Court while a certain right will continue to be violated.

80
The other challenge which was canvassed is the lack of regulations which guide
legal practitioners on how to deal with constitutional referrals. This will help to
minimise the number of matters which fail to pass the technicality aspects which has
been consistently set by the Constitutional Court.

Countries like South Africa, Kenya and Namibia have done it differently. What then is
it that Zimbabwe is lacking considering that these constitutions is pretty much the
same. It is apparent that the problem is with the Constitutional Court‘s practice and
procedure. It is surely an issue of political will and attitude largely than anything else.

This study has concluded that Zimbabwe‘s law as regards to constitutional referrals
is fairly adequate. The following recommendations are made considering that there
is a Constitutional Court Bill, HB 11-19 which is yet to be law. These are the
recommendations:

(a) There must be set timelines for the Constitutional Court to deliver its judgment
on referred matters;
(b) There must be a scope for special training of legal practitioners who intend to
appear in the Constitutional Court
(c) The doctrine of constitutional avoidance must be sparing be used,
(d) Judicial officer must mero muto refer matters to the Constitutional Court
(e) There is need to give inferior courts like the Magistrates Court constitutional
jurisdiction like the High Court wherein, automatic referrals will follow
(f) There is need for revising the Constitutional Court Rules of 2016, so as to
wash away technicalities

The combination of the law that Zimbabwe has and the above made
recommendations together with lessons that can be learnt from other countries
will surely make the constitutional referral system in Zimbabwe effective. It is
doable and the Declaration of rights will be fundamentally protected.

81
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 14. Schwartz, H (1992) ―The New East European Constitutional Courts‖, 13
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