PROSECUTOR GENERAL, ZIMBABWE
TELECEL ZIMBABWE (PRIVATE) LIMITED
CONSTITUTIONAL COURT OF ZIMBABWE
CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC,
GOWORA JCC, GUVAVA JCC, MAVANGIRA AJCC,
CHIWESHE AJCC, MAKONI AJCC, BHUNU AJCC
HARARE, OCTOBER 8, 2015
A. Mambosasa, for the applicant
Advocate Fitches, for the respondent
Advocate L Uriri, Amicus Curiae
GWAUNZA JCC: The court did not hear argument on the merits of this application, but determined it on the preliminary point of whether or not the matter had been properly brought before the Constitutional Court. At the end of the hearing the court issued the following order:-
“The application be and is hereby dismissed with costs on the legal practitioner and client scale.”
It indicated that the full reasons for this order would follow in due course. These are they. At the hearing of this matter, counsel for the applicant, Mr Mambosasa, was asked to address the court on the basis upon which the matter had been brought before the court in view of the following;
i) according to its Notice, the application was brought directly to this court, purportedly in terms of s 167(1) and 176 of the Constitution and not s 85(1) or other constitutional provisions that provide for such direct approach;
ii) it was neither an appeal against the judgment of the Supreme Court, nor was it referred by that court in terms of s 175(4) of the constitution; and
iii) the matters that he wished the court to determine were neither raised before, nor determined by the Supreme Court, as constitutional issues.
In short, the court wished to hear from the applicant whether he had established a basis for approaching the Constitutional Court with the application in question.
Mr Mambosasa conceded all the three points raised by the court. He further conceded that the papers before the Supreme Court did not properly challenge the constitutionality of ss 13 and 16 of the Criminal Procedure and Evidence Act [Chapter 9:01]. Doing so would have entitled the applicant to either appeal to this Court if the Supreme Court had ruled against him, or seek a referral of the matter to this Court in terms of s 175(4)) of the Constitution. He also conceded that consequently, the application had “no leg to stand on”, as it were. In light of these concessions, counsel for the applicant belatedly sought to withdraw the matter. The court ruled against him and proceeded to hear argument on the question of costs, as discussed later in this judgment. Despite not having filed any heads of argument, Mr Uriri, the amicus curiae was allowed to briefly address the court. He emphasised the need for parties wishing to apply directly to the Constitutional Court, to do so only upon establishing a proper basis for such an approach. This would insulate the court against a potential flood of undeserving cases at the instance of parties who may be disgruntled at decisions of lower courts, including the Supreme Court.
Even though this matter was not heard on the merits, I consider it necessary nevertheless to set out the backdrop to the order that the court issued. This necessitates a cursory look at some of the papers presented before the court.