Court name
Supreme Court of Zimbabwe
Case number
SC 48 of 2007
Const. Application 124 of 2007

Movement for Democratic Change v Minister of Justice, Legal and Parliamentary Affairs (124/07) (SC 48 of 2007, Const. Application 124 of 2007) [2007] ZWSC 48 (25 September 2007);

Law report citations
Media neutral citation
[2007] ZWSC 48



















REPORTABLE (40)


Judgment
No. SC 48/07


Const. Application No.
124/07








MOVEMENT FOR
DEMOCRATIC CHANGE v





(1) MINISTER OF
JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS


(2) THE
CHAIRMAN OF THE ZIMBABWE ELECTORAL COMMISSION


(3)
ATTORNEY-GENERAL OF ZIMBABWE (Intervener)








SUPREME COURT OF
ZIMBABWE


CHIDYAUSIKU  CJ,
CHEDA JA, MALABA JA, GWAUNZA JA & GARWE  JA


HARARE, SEPTEMBER 26,
2007








H Zhou, for
the applicant





N Mutsonziwa,
for the first respondent and the Intervener





G Chikumbirike,
for the second respondent






CHIDYAUSIKU  CJ: This is an application made in terms
of s 24(1) of the Constitution of Zimbabwe (“the
Constitution”).





The first and second
respondents raise two points in limine. At the commencement
of the hearing of this matter, the Court advised counsel that it
intended to determine the points in limine before determining
the merits of the application. Thereafter both counsel made
submissions on the points in limine. At the conclusion of
submissions, the Court upheld the first point in limine and
dismissed the application. It was indicated then that the reasons
for judgment would follow. The following are the reasons
for
judgment.





The first respondent
sets out the first point in limine in para 4.6 of his
opposing affidavit, which reads as follows:






“4.6 I do not believe that the applicant has a grievance which
falls to be redressed in terms of section 24(1) of the
Constitution
of Zimbabwe. To the extent that I can understand the
complaints of the applicant I do not think that such fall within the
ambit
of section 24(1) of the Constitution. This is a classic
case of the applicant abusing this procedure. The section 24(1)
procedure is open only in instances where there is a contravention of
any of the provisions of the Declaration of Rights (Chapter 3
of
the Constitution). Nowhere in the Founding Affidavit is there any
allegation of a violation of the Declaration of Rights by
any of the
respondents. The purported allegation of a contravention of
section 20 of the Constitution has no basis and is
put forward
in bad faith.”










The second respondent also raised the same point, namely that the
application does not fall within the ambit of s 24(1) of
the
Constitution, and the further point that the citing of the second
respondent was a misjoinder.





Thus, the two points
in limine that emerge on the papers were – (1) whether this
application falls within the ambit of s 24(1) of the
Constitution; and (2)
whether or not the second respondent was
properly cited.





It is now settled law
that in a Court application the founding affidavit in support of the
application sets out the applicant’s
cause of action. The
applicant’s case stands or falls on the founding affidavit.
Consequently it can never be over-emphasised
that care must be taken
by legal practitioners representing applicants when drafting the
founding affidavit. The founding affidavit
must succinctly set out
the cause of action. The cause of action should be clearly stated
so that the respondent is left in no
doubt as to what case he has to
meet and the relief sought. The relief is usually contained in the
draft order which forms part
of the application. It is equally
important that the opposing affidavit be sufficiently clear so that
it informs the applicant
and the Court of the defence the respondent
is raising. In those circumstances where the cause of action is
based on a statutory
provision, be it the Constitution or an Act of
Parliament, it is a must that the legal practitioner reads carefully
and understands
the requirements of the particular statutory
provision.





This application
perhaps represents what has become very common among legal
practitioners, namely taking a statement from the client
and
rehashing that statement, as in the founding affidavit, without
giving careful thought to what it is in that statement that
constitutes
the cause of action or what procedure is required to be
complied with by the relevant statutory provision.






A perusal of the application reveals that the applicant was
ill-advised on which forum or Court to bring its application.
Alternatively
the cause of action was poorly drafted and no attempt
was made to bring it within the ambit of s 24 of the Constitution, in
terms
of which the application is purported to have been made.






The applicant, in
para 6 of the founding affidavit, avers that the application was
made in terms of s 24(1) of the Constitution.
Section 24(1)
of the Constitution provides as follows:






“24 Enforcement
of protective provisions





(1) If any person
alleges that the Declaration of Rights has been, is being or is
likely to be contravened in relation to him
(or, in the case of a
person who is detained, if any other person alleges such a
contravention in relation to the detained person),
then, without
prejudice to any other action with respect to the same matter which
is lawfully available, that person (or that other
person) may,
subject to the provisions of subsection (3), apply to the
Supreme Court for redress.” (the emphasis is mine)






The applicant then
proceeds to set out the cause of action in paras 7-10 of the
founding affidavit. Paragraphs 7-10
of the founding affidavit
read as follows:






“7. The applicant has participated in Presidential, Parliamentary
and local authorities elections in this country since it was
formed
about eight (8) years ago. During the Presidential election in 2002
I represented the applicant as its candidate. The
applicant
therefore has a vested interest in this application as it is going to
field me as its Presidential candidate in the event
that the
applicant decides to participate in the Presidential elections to be
held in 2008. The applicant will also participate
in the
Parliamentary and Senatorial elections in the event that these are
held in 2008 as has been reported in the Government-controlled
media.
It is therefore important that all legal instruments which regulate
the elections comply with the provisions and spirit
of the
Constitution of Zimbabwe for there to be free and fair elections.





8. In 2004 the
Legislature enacted the Zimbabwe Electoral Commission Act
[Chapter 2:12] (Act Number 22 of 2004). That Act
came into operation on the 7th January 2005. Among
other things, the Act establishes the Zimbabwe Electoral Commission
and defines the functions of that
Commission.





9. It is my contention
that certain sections of the Zimbabwe Electoral Commission Act
(hereinafter referred to as the Act) are inconsistent
with the
provisions of the Constitution of Zimbabwe, and are therefore null
and void. The following are the sections in issue:






9.1 Section 3(1)(a) of the Act contravenes section 61(1)(a)
of the Constitution, in that the Act limits the appointment
of the
Chairman of the Commission to ‘a person qualified to be appointed
as a Judge of the High Court or the Supreme Court’.
The
Constitution in the section cited above provides that the Chairman of
the Commission ‘shall be a Judge of the High Court
or the Supreme
Court or a person qualified to be appointed as a Judge of the High
Court or (the) Supreme Court’. Given that the
Chairman is
appointed by the President who, under the current set up, is the
President and Secretary of the ruling ZANU (PF)
party, the
section as (it) appears in the Act leaves room for the President to
appoint a party activist from his political party
merely because that
person might be qualified to be appointed as a Judge having regard to
his educational qualifications and experience
after being admitted as
a legal practitioner.





9.2 Section 3(1)(b)
of the Act contravenes section 61(1)(b) of the Constitution in
that the Constitution provides that in
addition to the Chairman,
there shall be six other members of the Commission, at least
three of whom shall be women, appointed from a list of nine
nominees submitted by the Committee on Standing Rules and Orders.
The Act gives a total of four other members of the Commission
(in addition to the Chairman), at least two of whom shall be
women. The Act also reduces the number of nominees to be submitted
by the Committee on Standing Rules and Orders
to seven.





9.3 Section 61(8)
of the Constitution stipulates exhaustively what shall or may be
provided for in an Act of Parliament. Among
the functions of the
Zimbabwe Electoral Commission provided in section 61(4) of the
Constitution is ‘to conduct voter education’.
That is provided
for in section 61(4)(f) of the Constitution. The same function
is repeated in section 4(f) of the
Act. However, the Act in
section 15 deals with voter education by persons other than the
Commission or political parties.
Section 15 of the Act, in my
submission, is invalid as its provisions are not included in
section 61(8) of the Constitution,
and do not fall within any of
the matters which shall or may be provided for in the Act.
Accordingly, section 15 must be declared
to be null and void for
contravening the provisions of section 61(8) of the Constitution
of Zimbabwe.





9.4 Alternatively,
section(s) 15(1)(d) and 15(2) of the Act are null and void for
contravening section 20 of the Constitution,
which protects
freedom of expression. One of the Commission’s functions is to
conduct voter education. Any organisation involved
in voter
education is in essence performing the same function as the
Commission. The requirement that the other persons or organisation
involved in voter education must furnish the Commission with a
programme for approval by the same Commission offends against both
principles of natural justice and hinders enjoyment of freedom of
expression. The Commission must have its own programmes. The
Constitution does not allow it to approve voter education programmes
of other persons or organisations.





9.5 Section 15(3)
of the Act contravenes section 61(8) of the Constitution, as the
Constitution does not provide for criminal
or penal provisions to be
included in the Act. Accordingly, section 15(3) of the Act is
null and void.





9.6 Section 16 of
the Act makes the Commission the sole and exclusive recipient of all
foreign contributions or donations for
the purpose of voter
education. That provision is not provided for in section 61(8)
of the Constitution and is accordingly
null and void.”






Thereafter the
application sets out the relief sought in the draft order, which
reads as follows:






“IT IS ORDERED THAT






1. A rule nisi will issue calling upon the respondents to show
cause before this Court at 09.30 hours on the ………… day
of ……………………
2007, why:






(a) Section 3(1)(a) of the Zimbabwe Electoral Commission Act
[Chapter 2:12] should not be declared to be inconsistent
with section 61(1)(a) of the Constitution of Zimbabwe.





(b) Section 3(1)(b)
of the Zimbabwe Electoral Commission Act [Chapter 2:12]
should not be declared to be inconsistent with section 61(1)(b)
of the Constitution of Zimbabwe.





(c) Section 15 of
the Zimbabwe Electoral Commission Act [Chapter 2:12]
should not be declared to be ultra vires section 61(8) of
the Constitution of Zimbabwe.





(d) Section(s) 15(1)(d)
and 15(2) of the Zimbabwe Electoral Commission Act [Chapter 2:12]
should not be declared to be inconsistent with section 20 of the
Constitution of Zimbabwe.





(e) Section 16 of
the Zimbabwe Electoral (Commission?) Act [Chapter 2:12]
should not be declared to be ultra vires section 61(8) of
the Constitution of Zimbabwe.






2. The costs of the application are to stand over for determination
on the return day.”










The first respondent contends in both the opposing affidavit and in
his Heads of Argument that the Declaration of Rights provisions
of
the Constitution are found in Chapter III, namely
ss 11-23, and that s 24 provides a remedy for the breach of
these rights. He argued that s 61 of the Constitution,
a
violation of which forms the basis of the application, does not fall
within the Declaration of Rights and consequently the applicant
could
not allege that its fundamental rights, as guaranteed by the
Declaration of Rights, have been violated. He argued further
that,
as the application was for a breach of s 61 of the Constitution
which is not part of the Declaration of Rights, it could
not form the
basis of an application in terms of s 24(1) of the Constitution.
On this basis the respondents contend the application
was
improperly before this Court.





In my view, the
respondents’ submissions are simply unanswerable. The clear
intention of the Legislature in enacting s 24(1)
of the
Constitution was to provide a speedy procedure for the violation of
the Declaration of Rights. Section 24(1) was never
intended to
apply to a violation of the Constitution other than the Declaration
of Rights. Lest I be misunderstood, I am not suggesting
that other
violations of the Constitution have no redress. They do have.
They can be redressed via the High Court and by this
Court through
the process of appeal. It is a question of procedure. It is not
every violation of the Constitution that can found
an application in
terms of s 24(1).





This Court is
essentially an appeal court without original jurisdiction.
Section 24(1) of the Constitution confers original
jurisdiction
on this Court in respect of specific cases that fall within the four
corners of s 24(1) of the Constitution.
In my view, if the
applicant had stated its cause of action as a violation of s 18
of the Constitution in that its right to
protection of the law
guaranteed by s 18 had been, or is likely to be, violated by the
application to it of a law that was invalid
by reason of its being
ultra vires the Constitution, then that might have brought
this application within the four corners of s 24 of the
Constitution. Section 18
of the Constitution is part of the
Declaration of Rights and its violation entitles an applicant to
resort to a s 24(1) application.
An applicant who simply
avers, as this applicant has done, that sections of the electoral law
are ultra vires the Constitution and prays for a declaratur
to that effect, should launch such an application in the High Court
which enjoys original jurisdiction.





This point is not
new. This Court has time and again determined that for a litigant
to establish locus standi in terms of s 24(1) of the
Constitution, it is necessary for the litigant to aver that a
violation of the Declaration of Rights
has occurred or is likely to
occur in respect of himself/herself/itself. The only exception
provided for in s 24 is in respect
of a person in custody on
whose behalf an application can be made by another person.





This proposition
finds support in the following cases –





In Catholic
Commission for Justice and Peace in Zimbabwe v Attorney-General and
Ors
1993 (1) ZLR 242 (S) GUBBAY CJ, dealing specifically
with the issue of locus standi at p 250F-251A makes the
following observation:






“THE RELEVANT CONSTITUTIONAL PROVISIONS






Section 24(1) of the Constitution, which is the provision
pursuant to which the application was brought, vests in the Supreme
Court the power to deal with constitutional issues as a court of
first instance. It enjoins the Supreme Court to examine challenged
legislation, or a particular practice or action authorised by a State
organ, in order to determine whether or not it infringes one of
the entrenched fundamental rights and freedoms of the individual
.
The Supreme Court is empowered to measure the effect of the
enactment or action against the particular guarantee it is claimed
it
offends. Clearly it has jurisdiction in every type of situation
which involves an alleged breach or threatened breach of one of the
provisions
of the Declaration of Rights
and, particularly, where
there is no other judicial procedure available by which the breach
can be prevented. Compare, Martin v Attorney-General & Anor
1993 (1) ZLR 153 (S).” (the underlining is mine)






It is quite clear from
the remarks of the learned CHIEF JUSTICE that an application can
be made in terms of s 24(1) of the
Constitution only where it is
alleged that there has been or is likely to be a breach of the
Declaration of Rights and not any other provision of the
Constitution.





This case was
followed in In re Wood and Anor 1994 (2) ZLR 155 (S) at
pp 159F-160A where GUBBAY CJ stated the following:



“In the present matter, as Mr Colegrave so fairly and
graphically put it, Mrs Wood is seeking to assert a right to
reside in Zimbabwe by hanging onto Martin’s coat-tails.
Her
claim, which she acknowledges she does not otherwise possess, is to
some form of collateral right to the protection afforded
a citizen or
permanent resident under s 22(1). Such a stance, in my view,
is quite untenable.





Under subs (1) of
s 24 of the Constitution, and by inevitable implication under
subs (2) as well, the applicant or
party to the proceedings,
save only in relation to a detained person, must be able to allege
that a provision of the Declaration
of Rights has been, is being, or
is likely to be, contravened in respect of him. He must, therefore,
sue only for the acts or threats
to himself. Yet Mrs Wood does
not assert, nor could she, that a constitutional right afforded her
is being contravened by
the decision to refuse the grant of a
residence permit. Plainly it is not her freedom of movement
that is being unlawfully interfered with by the action of the
Immigration authorities.”









Again, the point is made clear that a litigant who brings an
application in terms of s 24(1) of the Constitution must allege
that a violation of the Declaration of Rights, as set out in ss 11-23
of the Constitution, has occurred or is likely to occur.
No such
averment has been made in this application.





Again, in Retrofit
v PTC and Anor
1995 (2) ZLR 199 (S) at pp 207G-208A the
Court reemphasised the same point where GUBBAY CJ, who delivered
the judgment
of the Court, had this to say:






“The contention advanced on behalf of the Corporation was that
s 24(1) affords the applicant no locus standi in judicio
to seek redress for a contravention of the Declaration of Rights
other than in relation to itself (the exception being where a person
is detained). It has no right to do so either on behalf of the
general public or anyone else. Put otherwise, a constitutional
right
that invalidates a law may be invoked by a person affected by the law
only if that person is also entitled to the benefit of
the
constitutional right. If not so entitled, then that person will be
precluded from impugning the law. See Hans Muller v
Superintendent Presidency Jail, Calcutta
1955 AIR 367 (Supreme
Court of India). The exception is where the person is the accused
in a prosecution for breach of the law.
See Hogg Constitutional
Law of Canada
3 ed at p 1274. I have no difficulty in
accepting this proposition.”






In the case of United
Parties v The Minister of Justice, Legal and Parliamentary Affairs
and Ors
1997 (2) ZLR 254 (S), this Court held that a political
party had no locus standi in judicio to challenge the
provisions of the Electoral Act which it alleged contravened the
right to freedom of expression of voters, such
right being protected
by s 20 of the Constitution. In dismissing the application
GUBBAY CJ said at p 258 B-E:






“Thus, s 24(1) affords the applicant locus standi in
judicio
to seek redress for a contravention of the Declaration of
Rights only in relation to itself (the exception being where a person
is
detained). It has no right to do so either on behalf of the
general public or anyone else. The applicant must be able to show
a
likelihood of itself being affected by the law impugned before
it can invoke a constitutional right to invalidate that law. See
Retrofit (Pvt) Ltd v Posts and Telecommunications Corporation and
Anor
1995 (2) ZLR 199 (S) at 207H-208A; 1995 (9) BCLR 1262 (ZS)
at 1269 E-G; 1996 (1) SA 847 (ZS) at 854 D-F.





So it was in In re
Wood and Anor
1994 (2) ZLR 155 (S) at 159F-160B; 1995 (1) BCLR 43
(ZS) at 46H-47B; 1995 (2) SA 191 (ZS) at 195 G-I, that this
Court held that
the right to reside in any part of Zimbabwe, as
guaranteed by s 22(1) of the Declaration of Rights, vested in
the minor child
of Mrs Wood and not in her. No constitutional
right in relation to her was violated by the refusal of the
immigration authorities
to grant her a residence permit. See also
Ruwodo NO v Minister of Home Affairs and Ors 1995 (1) ZLR
227 (S); 1995 (7) BCLR 903 (ZS).”









The United Parties case re-emphasised the point that it is
critical for an application in term of s 24(1) of the
Constitution to allege that the
Declaration of Rights has been
violated in respect of the applicant. There is no such averment in
the present application.





Following this line
of cases, I made the following observation in the case of Capital
Radio (Pvt) Ltd v The Broadcasting Authority of Zimbabwe and Two Ors

SC 128/02 at pp 4-5 of the cyclostyled judgment:






“This Court is essentially an appeal court. It enjoys no
original jurisdiction except in constitutional matters in terms of
s 24 of the Constitution. Thus the jurisdiction and the locus
standi
of litigants seeking to approach this Court in terms of
s 24 have to be found within the four corners of s 24 of
the Constitution.
This restriction does not affect a litigant that
wishes to institute a constitutional application in the High Court.
The provisions
of s 24 do not, in any way, circumscribe the
locus standi of an applicant in the High Court. In the High
Court the common law test, namely having an interest in the matter
under adjudication,
is sufficient to establish locus standi
(Van Winsen, Cilliers and Loots stated in Herbstein &
Van Winsen The Civil Practice of the Supreme Court of South
Africa
4 ed at 364; Zimbabwe Teachers’ Association and
Ors v Minister of Education
1990 (2) ZLR 48 at 51B et seq).
In a constitutional application in the High Court all that a
litigant is required to show to establish locus standi is a
substantial interest in a matter.





A direct approach to
the Supreme Court requires a litigant to allege that his not
another person’s fundamental right has been violated. Obviously
it is not sufficient to merely allege that one’s fundamental
right
has been, is (being), or is likely to be, violated. The factual
basis for such an allegation has to be set out. It follows,
therefore, that when a litigant is denied a hearing by this Court
because he has no locus standi that does not necessarily mean
that the door to litigation has been closed. It may merely mean
that the litigant has commenced
his application in the wrong forum,
taking into account the basis of his locus standi.





A constitutional
application commenced in the High Court can always find its way to
the Supreme Court on appeal. In short, the
basis of a litigant’s
locus standi in the High Court is much wider than it is in
this Court sitting as a constitutional court. In my view, it would
be doing violence
to the language of s 24 of the Constitution to
ascribe to it the meaning that it is sufficient to allege an interest
in the
matter in order to establish locus standi









Again the same point is made that for an application to fall within
the ambit of s 24(1) of the Constitution there has to be
an
allegation of a violation of the Declaration of Rights in relation to
the applicant.





In the matter of Law
Society of Zimbabwe v Minister of Justice, Legal and Parliamentary
Affairs and Anor
SC 16/06 I made the same point in the
following remarks to be found at pp 16-17 of the cyclostyled
judgment:






“I have no difficulty in accepting the general submission made by
Mr Moyo that the Law Society has a substantial interest
in a statute that is ultra vires the Constitution. I do not,
however, accept that this substantial interest is sufficient to vest
the applicant with locus standi in judicio to make an
application in terms of s 24 of the Constitution.





Locus standi to
bring a constitutional application to the Supreme Court in the first
instance must be found within the four corners of s 24
of the
Constitution. It is not sufficient to simply establish that the
applicant has an interest in the matter. The applicant
has to go
further and establish that the Declaration of Rights has been or is
likely to be contravened in respect to itself.





The applicant in this
case has failed to establish that a constitutional right, enshrined
in the Declaration of Rights, has been
or is likely to be violated in
respect of itself by the impugned Act.






While the applicant may be entitled to bring its application before
the High Court on the basis argued before us, it certainly has
not
established the basis for approaching the Supreme Court directly in
terms of s 24 of the Constitution.”









Thus, the submission of the respondents that an application in terms
of s 24(1) of the Constitution is limited to violations
of the
Declaration of Rights, protected in terms of ss 11-23 of the
Constitution, is supported by a long line of cases of this
Court.





In the present case the
allegation is that there has been a violation of s 61 of the
Constitution, which does not form part of
the Declaration of Rights.
Redress for the violation of s 61 of the Constitution cannot be
obtained using the s 24(1)
of the Constitution procedure.






There is a suggestion
in para 9.4 of the founding affidavit that ss 15(1)(d) and
15(2) of the Electoral Act violate s 20
of the Constitution.
However, there is no averment that the applicant’s right to freedom
of expression has been violated. That
paragraph simply avers that
other people’s rights protected under s 20 have been violated.
This averment is insufficient
to found an application in terms of
s 24(1). See the United Parties case supra.
There is no averment in the founding affidavit that the applicant’s
right to receive information has been violated. In the
Heads of
Argument the suggestion is made that the right to receive information
is interfered with. There is no factual basis in
the founding
affidavit to found such a submission.





Finally, it is quite
clear from the line of cases cited above that the applicant is in the
wrong forum. It should have brought
its application in the High
Court if it wished to have the provisions of the Electoral Act set
aside on the basis that they are ultra vires s 61 of the
Constitution. Alternatively, the drafting of its cause of action
should have been done in the manner suggested
above in order to bring
it within the ambit of s 24 of the Constitution.





Having found in
favour of the respondents in respect of the first point in limine,
there was no need to determine the second point in limine and
it accordingly fell away.






In the result, we dismissed the application with no order as to costs
for the reasons set out above.












CHEDA  JA:
I agree











MALABA  JA:
I agree











GWAUNZA  JA:
I agree











GARWE  JA:
I agree













Gutu & Chikowero, applicant's legal practitioners


Civil Division of
the Attorney-General’s Office
, first respondent’s and
Intervener’s legal practitioners


Chikumbirike &
Associates
, second respondent’s legal practitioners