Court name
Supreme Court of Zimbabwe
Case number
SC 14 of 2003
Const. Application 405 of 2002

Gwekwerere, In Re: (05/02) (SC 14 of 2003, Const. Application 405 of 2002) [2003] ZWSC 14 (10 June 2003);

Law report citations
Media neutral citation
[2003] ZWSC 14




REPORTABLE
Z.L.R. (10)














Judgment
No S.C. 14\03


Const.
Application No 405\02


















In Re
VICTOR
GWEKWERERE








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, SANDURA JA, CHEDA JA, ZIYAMBI JA &


MALABA
JA


HARARE
MAY 22 & JUNE 11, 2003








B.
Mufadza
,
for the applicant








SANDURA JA:
This matter was referred to this Court in terms of s 24(2) of the
Constitution of Zimbabwe (“the Constitution”).





The
factual background is as follows. The applicant is a Messenger of
Court stationed at Chitungwiza. He is presently charged
with
murder, the allegation being that at about 8.30 pm on 6 October 2002
he unlawfully shot and killed a man at a restaurant in
the suburb of
Mount Pleasant in Harare. It is not alleged that the murder was
committed when the applicant was on duty. However,
his trial has
not yet commenced.





Believing
that the applicant had conducted himself in a manner inconsistent
with the discharge of his duties as a Messenger of Court,
the
Provincial Magistrate for Harare decided to act in terms of
subsections (6) and (7) of s 10 of the Magistrates Court Act [Chapter
7:10] which, in relevant part, read as follows:-






“(6) A messenger who -






  1. –
    (c) …; or








  1. conducts
    himself in any manner … inconsistent with the discharge of his
    duties as a messenger; or








  1. for
    any other reason is, in the opinion of the provincial magistrate,
    unsuitable or unable to perform his duties;







may be suspended by the
provincial magistrate …






  1. The
    provincial magistrate shall forthwith report to the Minister any
    action he has taken under subsection (6) and the Minister may,
    after
    consideration of the report, set aside the suspension or confirm it
    and dismiss the messenger from his office.”










However,
before suspending the applicant and reporting the matter to the
Minister the Provincial Magistrate adopted a cautious approach
by
instituting an inquiry into the applicant’s conduct. The inquiry
was to be presided over by a junior provincial magistrate.






Subsequently,
on 14 November 2002 and just before the inquiry commenced, the
applicant’s legal practitioner objected to the inquiry
and raised
constitutional issues which were not clearly articulated. However,
what I can gather from the record of the proceedings
is that the
objection was based on the contention that if the inquiry preceded
the murder trial, the applicant’s right to a fair
trial in respect
of the murder charge, guaranteed by s 18(9) of the Constitution,
would be prejudiced in that the applicant’s evidence
at the inquiry
would enable the prosecution witnesses in the murder trial to make
suitable adjustments to their evidence before the
trial commenced.





In
the circumstances, the applicant’s legal practitioner suggested
that the matter be referred to this Court for the determination
of
the constitutional issues he had raised. The matter was then
referred in terms of s 24(2) of the Constitution.





Subsection
(2) of s 24 of the Constitution, in terms of which the matter was
referred, reads as follows:-





“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
pertinent to note that the only question which may be referred to
this Court in terms of s 24(2) of the Constitution is one
which
arises “in any proceedings in the High Court or in any court
subordinate to the High Court” and concerns a contravention
of the
Declaration of Rights.





The
question which now arises is whether the inquiry instituted by the
Provincial Magistrate falls into the category of “proceedings
in
the High Court or in any court subordinate to the High Court”. In
my view, it does not.





The
inquiry was an administrative one designed to determine whether the
applicant had conducted himself in a manner inconsistent
with the
discharge of his duties as a Messenger of Court or was, for any other
reason, unsuitable for that post. It was not a judicial
proceeding
conducted in any court. The fact that it was presided over by a
provincial magistrate and that it was to be conducted
in the
magistrates court building made no difference to its nature. It
could have been presided over by a person who was not a
magistrate
and could have been conducted in one of the offices of the Ministry
of Justice, Legal and Parliamentary Affairs. It
was purely
administrative in nature and had nothing to do with the courts.





That
being the case, the matter should not have been referred to this
Court in terms of s 24(2) of the Constitution.





However,
that does not mean that the applicant did not have any avenue through
which he could have sought redress for his grievances
from this
Court. He could have made a direct approach to this Court by filing
an application in terms of s 24(1) of the Constitution
which, in
relevant part, reads as follows:-





“If
any person alleges that the Declaration of Rights has been, is being
or is likely to be contravened in relation to him … that
person …
may … apply to the Supreme Court for redress.”









Whether such
an application could have been successful is a matter on which I do
not wish to express an opinion at this stage.





In
the circumstances, as the matter should not have been referred to
this Court, it was not properly before us and is, therefore,
struck
off the roll.







CHIDYAUSIKU CJ: I agree








CHEDA
JA: I agree








ZIYAMBI
JA: I agree








MALABA
JA: I agree












Mufadza &
Associates
,
applicant’s legal practitioners