Joshua John Chirambwe v The President of the Republic of Zimbabwe & 4 Ors

### Preamble
Judgment No. CCZ 4/21
1
Court Application No. CCZ 4/19
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REPORTABLE:   (4)

JOSHUA     JOHN     CHIRAMBWE

v

THE     PRESIDENT     OF     THE     REPUBLIC     OF     ZIMBABWE     (2)     JUDICIAL     SERVICE     COMMISSION     (3)     CHIEF     JUSTICE     OF ZIMBABWE,     LUKE     MALABA     N.O.     (4) MINISTER     OF     JUSTICE,     LEGAL     &     PARLIAMENTARY     AFFAIRS     (5)     KUMBIRAI     HODZI

CONSTITUTIONAL COURT OF ZIMBABWE

GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, MAVANGIRA JCC, BHUNU JCC, MAKONI JCC & MATHONSI JCC

HARARE: 9 OCTOBER 2019 & 24 JUNE 2021

T. Mpofu, for the applicant

F. Chimbaru, for the first respondent

L. Uriri, for the second and third respondents

V. Mhungu, for the fifth respondent

No appearance for the fourth respondent

GARWE JCC

[1]	This is an application brought in terms of s 167(2)(d) of the Constitution of Zimbabwe, as read with rr 21(1)(d) and 27(1) of the Constitutional Court Rules, 2016, for a declaration that the President of the Republic of Zimbabwe, the first respondent herein, failed to fulfil the constitutional obligation imposed upon him by s 259(3) as read with s 180 of the Constitution of Zimbabwe when he appointed the fifth respondent as the Prosecutor-General of Zimbabwe.  All the respondents have opposed the application for various reasons which will be articulated in the course of this judgment.

[2]	Having considered the facts of this matter and the law, I reach the conclusion that the applicant has not established that there was such a failure by the President to fulfil the constitutional obligation imposed upon him by the Constitution in appointing the fifth respondent as the Prosecutor-General of Zimbabwe.  I am of the further view that this application, largely predicated as it is on hearsay evidence, could not have been expected by the applicant to succeed.  Unsubstantiated allegations of impropriety, based on the same hearsay, have been made against the President of the Republic of Zimbabwe, the Judicial Service Commission and the Chief Justice. Consequently the application falls to be dismissed with an order of costs on the ordinary scale.  The reasons for this conclusion follow in due course.

FACTUAL BACKGROUND

[3]	Sometime during the course of 2018, a vacancy arose in the office of the Prosecutor–General of Zimbabwe.  Acting in terms of s 259 (3) as read with s 180 (4) (a) and (b) of the Constitution, the Judicial Service Commission, the second respondent herein, advertised the position and invited the President and members of the public to nominate suitably qualified persons to fill the position.  Pursuant to the advertisement, the Judicial Service Commission received a total of eleven nominations to fill the position.  It is common cause that the name of the fifth respondent, Kumbirai Hodzi, was one of those received by the Judicial Service Commission.

[4]	On 1 November 2018, the Judicial Service Commission conducted public interviews in terms of s 180(4)(c) to fill the vacancy.  After conducting the public interviews, the commissioners of the Judicial Service Commission deliberated on the matter after which they prepared a list of three nominees they considered were qualified for appointment to the position.  The list was in due course submitted to the President who advised the Judicial Service Commission that he did not consider any of the names on the list to be suitable for appointment to the position and concomitantly called upon the Judicial Service Commission to submit a further list of three qualified persons.

[5]	 In due course the Judicial Service Commission prepared a further list of three qualified persons and submitted the same to the President.  On 22 January 2019 the President appointed the fifth respondent to the office of Prosecutor–General of Zimbabwe.  Aggrieved by the appointment, the applicant filed the present application on 7 February 2019, alleging, amongst other things, that the President had failed to fulfil his constitutional obligation to make an appointment that was consistent with ss 259(3) and 180 of the Constitution.

APPLICANT’S CASE BEFORE THIS COURT

[6]	The applicant’s case is not based on his personal knowledge but on information “from some of the commissioners who have been reluctant to file affidavits in support of the application”.  Going by that information, the applicant says he became aware that the fifth respondent had performed so badly during the interviews that at the end of the process “he sat at the bottom of the list”.  He allegedly did not make it to the top six of those who had been interviewed.

[7]	In the applicant’s view, once the President is presented with a list of three names, he must, unless special circumstances exist, appoint a Prosecutor-General from one of the three names. If he has compelling reasons why an appointment cannot be made from that list of three names submitted to him, he must state those reasons to the Judicial Service Commission and the public, otherwise the whole exercise would become an expensive charade.  Further, where the President declines to appoint any of the three persons on the first list, he must cause the Judicial Service Commission to conduct further interviews, for the reason that he has no further latitude but to appoint one of three persons on the second list submitted by the Judicial Services Commission.  The President cannot make an appointment from those candidates who would have been condemned by the first interviews.

[8] 	He says what he found objectionable was that, after being handed the first list of three names, the President called the Chief Justice of Zimbabwe, who chairs the Judicial Service Commission, for a meeting. At that meeting, the President allegedly indicated to the Chief Justice that he was not prepared to appoint any of three persons whose names had been forwarded to him.  He indicated that he was only prepared to appoint the fifth respondent.  He was allegedly advised that even if another list was prepared, the fifth respondent would still not make it as he was outside the top six.  The applicant says he was advised “by those who attended the meeting” that the President then indicated that he was going to see what he could do.  In his view “illegitimate” pressure was exerted on the Chief Justice who subsequently contacted the individual commissioners to advise them of the outcome of the meeting.  Pursuant to that telephonic discussion, a further list was then prepared and forwarded to the President, this time bearing the name of the fifth respondent.

[9]	Therefore, so the applicant asserts, in purporting to make an appointment based on the second list given under these dubious circumstances and which was not the result of a public interview, the President flouted the Constitution and failed to discharge his constitutional obligations as directed by the Constitution.  The President was under an obligation not to accept a list of three names that had not been preceded by fresh interviews.  The applicant therefore seeks the following relief (a) a declaration that, in appointing the fifth respondent to the post of Prosecutor-General, the President breached the constitutional obligation imposed upon him by ss 259(3) and 180 of the Constitution of Zimbabwe (b) a further declaration that the breach by the President of his obligations under the Constitution constitutes a breach of the protection afforded by the law (c) as a consequence, an order nullifying the appointment of the fifth respondent as the Prosecutor-General of Zimbabwe and (d) an order that any respondent who opposes the application pays the costs of the application.

FIRST RESPONDENT’S OPPOSITION

[10]	In his opposing papers, the President makes the following assertions.  He considers his duty under s 259(3) of the Constitution to be that of appointing a Prosecutor–General on the advice of the Judicial Service Commission following the procedures for the appointment of a judge set out in s 180 of the Constitution. Section 180 of the Constitution gives him the discretion, acting on his own judgment, to appoint a candidate of his choice from the list of three qualified persons provided to him by the Judicial Service Commission.  Where he considers none of the persons on the list to be suitable for appointment, the Constitution allows him to request the Judicial Service Commission to submit a further list of three qualified persons whereupon he must appoint one of them to the office concerned.

[11]	In this particular case, he considered that none of the candidates on the first list were suitable for appointment.  He duly advised the Judicial Service Commission of this fact and caused the Judicial Service Commission to provide him with another list of three qualified persons.  He then appointed the fifth respondent from that list.  There was nothing irregular about that appointment and he considers that he properly fulfilled the constitutional obligation specified in s 259(3) as read with s 180 of the Constitution.  When a list is forwarded to him by the Judicial Service Commission, he assumes that the Commission would have performed its constitutional duty as specified by the Constitution.  What he gets from the Judicial Service Commission is the list of three qualified persons and not the record of proceedings showing how the candidates would have been assessed by the Judicial Service Commission.  He considers that he has no obligation to give reasons for finding the nominees in the first list unsuitable for appointment.  He denied the allegation that the fifth respondent was not qualified for appointment to the position or that he was not on the second list that was forwarded to him by the Judicial Service Commission. He further stated that the allegations made against him are, in any event, unsubstantiated and not supported by any facts.

SECOND AND THIRD RESPONDENTS’ OPPOSITION

[12]	The second and third respondents’ opposing affidavit was deposed to by Mr. Walter Chikwana, then Acting but now the substantive Secretary of the Judicial Service Commission.  He takes three preliminary objections.  The first is that the present application and, in particular, the founding affidavit is, but for a few minor changes, a replica of the affidavit deposed to in an earlier application filed by one Simbarashe Zuze.  The applicant and his lawyers have simply resorted to cutting, copying and pasting that application.  He considers such conduct unethical and displays the utmost disdain for this Court.  The second is that, in so far as the applicant seeks an order that, pursuant to the appointment of the fifth respondent, his right to the equal protection and benefit of the law has been violated, the applicant should have sought the leave of the court to apply directly to this Court.  The third is that the citation of the Chief Justice as a party to these proceedings is a material misjoinder.  It is highly irregular and bad at law.

[13]	 On the merits, he confirms that, after conducting the interviews, the Judicial Service Commission prepared a list of three nominees who were qualified for appointment to the post of Prosecutor-General.  When the list was submitted to the President, the latter advised that he did not consider any of the nominees to be suitable for appointment to the office and called upon the Judicial Service Commission to submit a further list of three qualified persons.  This the Commission proceeded to do and, on 22 January 2019, the President appointed the fifth respondent as Prosecutor-General of Zimbabwe.  The averment by the applicant that, where the President declines to appoint any of the persons on the first list to the position, then an entirely new appointment process has to restart is a deliberate misreading of the law and is incorrect.

FIFTH RESPONDENT’S OPPOSITION

[14]	In his opposing affidavit, the fifth respondent took three preliminary points.  First, that the constitutional question raised by the applicant revolves around the fulfilment of purely procedural requisites that are susceptible to review by the High Court and do not fall within the exclusive jurisdiction of this Court.  Second, that the applicant lacks the locus standi to institute the present application on the basis that he has not demonstrated that his individual rights have been infringed or that there has been a contravention of the Declaration of Rights in relation to himself.  In addition, he has attempted to seek redress both in his capacity as a legal practitioner and a citizen.  Third, that the matter is not one capable of resolution in view of the numerous disputes of fact on the papers.

[15]	On the merits, he disputes that the Constitution requires the President to ensure that the Judicial Service Commission conducts a second round of interviews once he rejects the first list of nominees.  Further, he submits that the applicant’s entire case is based on hearsay with no effort having been made to verify the authenticity of the allegations that he makes. He considers himself qualified for appointment in accordance with the Constitution of Zimbabwe.

APPLICANT’S ANSWERING AFFIDAVIT

[16]	Applicant denies that he ought to have sought the leave of this Court before approaching the court directly. He states that, although allegations have been made against the Chief Justice, the latter has not seen it fit to respond to them.  All the respondents should have explained “the process by which a second list was prepared”.  He threatened to subpoena all the Commissioners of the Judicial Service Commission to testify under oath but did not proceed to do so.

APPLICANT’S SUBMISSIONS BEFORE THIS COURT

[17]	The applicant’s submissions are as follows.  Certain factual allegations have been put forward but have not been controverted by the respondents.  Therefore, those allegations must be taken as admitted.  The manner in which the list which bore the name of the fifth respondent was generated has not been accounted for and there is very little desire on the part of the respondents to take the court into their confidence.

[18]	He denies that the application raises purely procedural prerequisites pertaining to form and that, to the contrary, it raises a substantive constitutional obligation on the part of the President.  This Court therefore has jurisdiction to deal with this matter as it raises a constitutional duty which must be complied with by the President.  Requiring the President to account for his decisions is a value that is part and parcel of the Constitution.

[19] 	A week after filing his heads of arguments, the applicant filed supplementary heads of argument.  In those heads, he has submitted, inter alia, that the Judicial Service Commission is under obligation to comply with administrative justice requirements, but accepts that the Administrative Justice Act [Chapter 10:28] has exempted decisions relating to the appointment of judicial officers from its application.  He has cited cases from South Africa which have held that, despite similar provisions in the Administrative Justice Act of that country, the decisions of the Judicial Service Commission in that country are reviewable under the doctrine of legality and that the Judicial Service Commission has an implied duty to give reasons.  In this regard he referred to the decision of the Constitutional Court of South Africa in Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA I (CC); 2018 (7) BCLR 763 (CC).  It is important at this stage to highlight the fact that the decision in the Helen Suzman Foundation case, supra, was reached in an interlocutory application to compel the Judicial Service Commission of that country to file a full record of the proceedings, to enable the proceedings of the Judicial Service Commission to be reviewed in the main application.  The court in its judgment further underscored the requirement that the decision-maker should file the record of the decision in review proceedings to enable the applicant and the court to fully and properly assess the lawfulness of the decision-making process.  Notwithstanding the fact that the applicant has at no stage brought review proceedings against the Judicial Service Commission of this country in respect of the present matter, his complaint is that the Judicial Service Commission has failed to shed light on the deliberations that led to the compilation of the second list of nominees.

[20]	Asked by this Court during oral submissions what constitutional obligations the President breached, Mr Mpofu for the applicant, itemised four such obligations. First, the failure by the President to give reasons.  Second, the creation of a further list on the basis upon which an appointment was made but which was not preceded by public interviews. Third, the involvement of the President in seeking to influence the Judicial Service Commission into doing what he wanted.  Lastly, the appointment of the fifth respondent who had disqualified himself by saying he was not prepared to be independent but would take orders from the executive.

SUBMISSIONS BY THE PRESIDENT BEFORE THIS COURT

[21]	 In his submissions before this Court, the President has disputed the assertion by the applicant that certain factual positions put forward by the latter have not been controverted. He states that he has, in his opposing affidavit, denied everything that is contrary to the procedure he outlined as having been followed in the appointment of the fifth respondent.  He has further submitted that, instead of setting out facts supported by evidence, the applicant has merely set out a case based on rumour and speculation.  It is this evidence that forms the basis of the applicant’s averment that he has as President failed to carry out his constitutional obligations.  Bearing in mind that, in application proceedings, the founding affidavit constitutes not only the pleadings but also the evidence, it is clear that, apart from hearsay evidence, the founding affidavit contains no facts which the President may have been required to controvert.  There is no evidence that the fifth respondent failed the interview or that he interfered with the selection process.  Further, no specific constitutional obligation has been identified which he allegedly failed to fulfil.  His duty is to appoint a Prosecutor-General from a list prepared by the Judicial Service Commission and that is precisely what he did.  He has no obligation to give reasons for his decision.  Further, unless he has personal knowledge that the selection process laid out in the Constitution has not been followed, he is entitled to assume that the Judicial Service Commission would have followed the dictates of the Constitution.  If the intention by the applicant was to impugn the process by which the Judicial Service Commission came up with the list, then a review application should have been filed, citing the Commission rather than an application to declare that he has failed to carry out a constitutional obligation.  Lastly, he submitted that the Constitution does not provide for a second round of interviews once he rejects the first list of nominees.  It would not be proper for a court to read into the Constitution obligations which are not imposed on him by the same Constitution.

SUBMISSIONS BY THE SECOND AND THIRD RESPONDENTS BEFORE THIS COURT

[22]  	In their submissions, the second and third respondents state as follows. Serious allegations of criminal abuse of office have been made against the President, the Judicial Service Commission and the Chief Justice.  The allegations are all predicated on hearsay and the applicant has not been able to prove them. They therefore urged this Court to summarily dismiss the proceedings on the basis that they are frivolous and vexatious and are not bona fide.  They submitted that the application is inconsistent with principle, is not seriously taken and was meant only to grandstand and to harass and vex the respondents.

[23]	The respondents have also taken three preliminary points. First, that the application is improperly before the court because the application seeks declaratory relief to the effect that the appointment breaches the applicant’s right to equal protection and benefit of the law and is therefore constitutionally invalid.  The matter is therefore not a constitutional matter that can be related to only by this Court.  What the applicant calls constitutional obligations are issues not provided for by the Constitution.  Second, that the matters that the applicant is unhappy with are procedural requirements which are prerequisites to the validity of the appointment of the Prosecutor-General and are issues that can be handled by courts subordinate to this Court.  Third, that the citation of the Chief Justice was wrong because the remedy the applicant seeks is against the Judicial Service Commission and not the Chief Justice in his official capacity.

[24] 	The objection raised in the opposing papers regarding the alleged plagiarism by the applicant of the contents of the affidavit filed in case No. CCZ 04/19 by one Simbarashe Zuze was not persisted with either in the heads of argument or during oral argument.  In the circumstances, the objection was taken to have been abandoned.

[25] 	On the merits they submit that, to sustain a complaint that the President has failed to fulfil certain Constitutional obligations, certain allegations of fact must be made and proved.  The obligation must be identified and details of how it was breached must also be given.  Moreover the obligation that the Constitution has imposed on the President must not be one that is shared with other state functionaries.

[26]	The respondents deny that the second list of nominees was supposed to be prepared only after a second round of interviews.  The Constitution makes no such provision and neither is there a provision in the Constitution which stipulates who should be on the list that is eventually submitted to the President.

[27]	The respondents further submit that this Court cannot determine disputes or other contentious issues between litigants on the basis of hearsay evidence.  Such evidence is not admissible and in any event has no probative value.  It proves nothing.  There was no obligation on the respondents to respond to allegations based on such evidence.

[28] 	More particularly, the Judicial Service Commission has submitted that it advertised the position of Prosecutor-General as required by the Constitution.  It received nominations from the President and the public and conducted public interviews.  It prepared a list of three qualified nominees which it forwarded to the President.  When the President indicated that he was not able to appoint any of the three, it submitted a further list containing three names.  There is no provision requiring it to conduct a second round of interviews or for the President to give reasons to it for his rejection of the first list of nominees.

[29] 	Both respondents further submitted that the applicant, not having responded to the opposing affidavit of the President, must be regarded as having admitted the contents of that affidavit.

[30] 	On the question of costs, the respondents have submitted that the applicant has been reckless in filing the present application.  He has not established any constitutional infraction.  They prayed for an order of costs on the scale of legal practitioner and client.

FIFTH RESPONDENT’S SUBMISSIONS

[31] 	In his heads of argument, the fifth respondent has submitted that he is qualified to hold the office of Prosecutor-General as prescribed by the Constitution. No declaratur has been sought by the applicant against the Judicial Service Commission to the effect that it failed to carry out its mandate in presenting a candidate who was not qualified for selection.

[32]  	He has also submitted that there is no legal requirement on the President to provide reasons for rejecting the first list.  In any event, not having disputed the contents of the opposing affidavit filed by the President, the applicant cannot properly allege that the initial list was declined on unconstitutional grounds.

[33] 	Further, the Rules require an applicant or deponent to an affidavit to swear positively to the facts.  The applicant cannot swear positively to the facts because his affidavit is predicated on hearsay.

[34]	 He has further submitted that the questions raised by the applicant revolve around the fulfilment of purely procedural requisites that are susceptible to the review jurisdiction of the High Court.  Relying on the South African Supreme Court decision in Mary Patricia King & others v Attorneys Fidelity Fund Board of Control & Anor (561/2004) [2005] ZASCA 96; [2006] 1 All SA 458(SCA); 2006 (4) BCLR 462 (SCA), he submitted that what is complained about are procedural requirements that are prerequisites to validity and that these do not impose obligations on the President.  The High Court has jurisdiction to make an order that, by omitting to observe the prerequisites as to form and manner, the President has failed to make a constitutionally valid appointment.

[35]	The fifth respondent has further submitted that the applicant lacks the locus standi to institute the present application because he has not demonstrated that his individual rights have been infringed.

[36]	 Lastly, he has submitted that the applicant filed the supplementary heads of argument without the leave of the court.  This is contrary to r 238 of the High Court Rules and, consequently, those heads should be expunged from the record.

ISSUES FOR DETERMINATION

[37] 	It is apparent, from the above synopsis, that several issues have been raised and that a number of them require to be determined in limine.  In my view, the preliminary issues that fall for determination are the following.  First, whether the application is properly before the court and, in particular, whether the applicant was required to seek the leave of this Court in order to approach it directly.  The second is whether the applicant has the locus standi to institute this application.  The third is whether the application is frivolous and vexatious and should be summarily dismissed.  The fourth is whether the Chief Justice of Zimbabwe, the Honourable Luke Malaba, has been properly cited as a party to the present proceedings.  The fifth is whether the applicant’s supplementary heads of argument were properly filed. Lastly, the implications of the reliance by the applicant on hearsay evidence in his founding papers. I deal with each of these issues but not necessarily in the same order that they appear in this paragraph.

WHETHER THE APPLICANT IS PROPERLY BEFORE THE COURT

[38] 	Three separate issues arise under this head.  The first relates to the second and third respondents’ submission that, since the applicant sought a declaratur that the appointment of the fifth respondent has breached his right to equal protection and benefit of the law, this is not a constitutional matter predicated on s 167(d) of the Constitution (as read with the Constitutional Court Rules, 2016), but rather one in respect of which he ought to have sought leave first before approaching this Court directly.  The second is the submission by the fifth respondent that this Court is precluded from pronouncing on the applicant’s complaint because the questions he raises revolve around the fulfilment of purely procedural requisites that are susceptible to the review jurisdiction of the High Court.  The third issue that falls for determination is whether the applicant lacks the locus standi to institute the present application for the reason that he has not demonstrated that his individual right or rights have been infringed.  I deal with the last issue first.

HIS INDIVIDUAL RIGHTS NOT HAVING BEEN VIOLATED, WHETHER THE APPLICANT SHOULD HAVE SOUGHT LEAVE TO APPROACH THIS COURT

[39] 	It is correct that in the case of Chombo v Parliament of Zimbabwe & Others SC 5/13, cited by the applicant, the Supreme Court of Zimbabwe made it clear that an applicant approaching the court in terms of s 24(1) of the former Constitution was required to show that his individual right or rights had been infringed and that he had no right to seek redress on behalf of the general public or anyone else.  That this was the correct position at law at the time the decision was made there can be no doubt.  However on 22 May 2013, the Constitution of Zimbabwe Amendment (No. 20) Act 2013 came into force and repealed the former Constitution.  That the new Constitution expanded the locus standi of persons seeking to approach the court is now settled.  For example, in direct applications brought under s 85(1) of the Constitution, torch bearers are now permitted to seek redress on behalf of the general public or in the interests of a group or class of persons. In respect of an application alleging that the President or Parliament has failed to fulfil a constitutional obligation, r 27 of the Constitutional Rules, 2016 requires an applicant to depose to an affidavit setting out the constitutional obligation in question and what it is alleged the President or Parliament failed to do in respect of such obligation.

[40] 	That the locus standi of applicants seeking constitutional protection and enforcement has been extended is now accepted by this Court.  In Everjoy Meda v (1) Maxwell Matsvimbo Sibanda (2) Zambe Nyika Gwasira (3) The Sheriff of the High Court of Zimbabwe (4)The Registrar of Deeds CCZ 10/2016, MALABA CJ made pertinent remarks at p 5 of the judgment that:

“The purpose of the section is to allow litigants as much freedom of access to the courts on questions of violation of fundamental human rights and freedom with minimal technicalities …”

Similarly in Innocent Gonese (2) Jesse Majome v (1) The President of Zimbabwe (2) Parliament of Zimbabwe (3) Minister of Local Government, Public Works and National Housing N.O. CCZ 10/2018, PATEL JCC, writing for the court, remarked at pp 13-14 of the judgment that:-

“… the latter consideration, in my view, behoves this Court to adopt a liberal and generous approach to locus standi in matters involving constitutional rights and obligations …… See also Mudzuru & Anor v Minister of Justice, Legal & Parliamentary Affairs N.O. & Ors CCZ 12/2015 at pp 13-15 where this Court, per MALABA DCJ (as he then was), eschewed the narrow traditional conception of locus standi in favour of a broad and generous approach to standing in constitutional matters…. In my view, the applicants have an unquestionable right both as citizens and as legislators, to vindicate any perceived violation of the Constitution….”

[41] 	Considering the whole tenor of the current Constitution and the cases cited above, I have no doubt in my mind that it is no longer a requirement for an applicant in a constitutional application, such as the present, to demonstrate that a particular constitutional right has been violated in respect of him/her personally.  The applicant makes it clear that he approaches the court in his capacity as a citizen and resident of Zimbabwe. The point in limine taken on this aspect must therefore fail.

WHETHER THE APPLICANT SHOULD HAVE SOUGHT LEAVE TO APPROACH THE COURT IN ALLEGING BREACH OF THE PROTECTION OF THE LAW

[42] 	As I understand the submissions by the second and third respondents in this regard, the applicant should have sought the leave of this Court once he decided to seek the declaratur, inter alia, that the breach by the President of Zimbabwe “constituted a breach of the protection afforded by the law and is a breach of the Constitution on that further score”.  I would agree with the second and third respondents that the inclusion of this declaratur has certainly obfuscated the relief that the applicant is seeking from this Court.  Indeed, in his submissions, the applicant has not attempted to clarify what relief he had in mind when he sought this particular declaratur in his draft order.

[43] 	What is clear, however, is that the applicant came to court in terms of the provisions of r 27(1) of the Constitutional Court Rules as read with s 167(2)(d) of the Constitution.  Not only does he rely on r 27 of the Rules in his founding affidavit but he even goes further to aver that the application is brought in terms of r 21(1)(d) as read with r 27(1) of the Constitutional Court Rules, 2016.  In his draft order, he prays for, as the first part of the relief he seeks, a declaratur that, in appointing the fifth respondent as the Prosecutor-General of Zimbabwe, the President of Zimbabwe breached the constitutional obligation imposed upon him by s 259(3) as read with s 180 of the Constitution of Zimbabwe.  Clearly that declaratur can only be made in terms of s 167(2)(d) of the Constitution of Zimbabwe.

[44] 	In the circumstances, I find, therefore, that the applicant was not required to seek the leave of this Court before filing the present application. Such leave would have been necessary had this application been filed in terms of s 85 of the Constitution alleging a violation of one of his fundamental rights enshrined in Chapter 4 of the Constitution.  That is not the applicant’s cause before this Court.

[45] 	As remarked by MALABA DCJ in the Everjoy Meda case, supra, at pp 5-6 of the judgment:-

“It is clear from a reading of s 85(1) of the Constitution that a person approaching the court in terms of the section only has to allege an infringement of a fundamental human right for the court to be seized with the matter…

Whether or not the allegation is subsequently established as true is a question which does not arise in an enquiry as to whether the matter is properly before the court …… Whether her allegation is true or not is not the issue.  What matters is that she alleged a violation of a fundamental human right and as such the court was properly seized with the matter.  The question of the veracity of the allegation would have been tested on the basis of evidence placed before the court.”

The preliminary point taken on this aspect must also fail.

WHETHER THE ISSUES RAISED INVOLVE PURELY PROCEDURAL REQUISITES

[46]	Relying on the decision of the South African Supreme Court of Appeal in the Mary Patricia King case, supra, the second, third and fifth respondents have submitted that what the applicant complaints about are procedural requirements that are prerequisites to validity and that these do not impose any constitutional obligations.  In that event, other courts subordinate to the Constitutional Court would have jurisdiction to make an order of constitutional invalidity.  The present application would therefore not be one in respect of which this Court would have exclusive jurisdiction.

[47]	 The distinction drawn in the Mary Patricia King case, supra, between invalidity based on procedure and invalidity based on a purely capacity-defining formality, is somewhat difficult to follow.  In para 18 of its judgment, the court went to state that “should Parliament purport to adopt a Bill that fails to receive a majority of votes cast, it does not act in breach of a constitutional obligation, but fails to legislate at all.”  I express my reservation as to the correctness of some of the remarks made in that judgment which appear to be too broad and inconsistent with the interpretation given to the phrase “failure to fulfil a constitutional obligation” by this Court. I do not believe that, as a country, our jurisprudence has gone this far. I would agree with the remarks of PATEL JCC in the Innocent Gonese case, supra, at p 11 of the judgment, that:-

“ … the obligation of Parliament to secure public access to one’s involvement in its legislative and other processes, as enjoined by s 141 of the Constitution, is not merely a procedural prerequisite pertaining to form and manner.  Rather, it is a substantive constitutional obligation, within the contemplation of s 167(2)(d), which is fundamental to the lawful passage of every legislation.  It is a constitutional duty that must be complied with by Parliament ….”

The same sentiments were expressed by MALABA CJ in Gonese & Anor v Parliament of Zimbabwe & Ors CCZ 4/20.

[48]	The test to determine whether this Court is seized with a matter which requires its exclusive jurisdiction under s 167 to be exercised is whether the issues raised involve an intrusion into the domain of either Parliament or the President’s executive powers. In Doctors for Life International v Speaker of the National Assembly & Ors 2006 (6) SA 416 (CC) the Constitutional Court of South Africa had an occasion to determine what entails a constitutional obligation as contemplated by the South African Constitution. The court proceeded, at para 19, on the premise that the phrase “a constitutional obligation” in s 167(4)(e) of the South African Constitution – the equivalent of our s 167(2)(d) – should be given a narrow meaning and that only this Court had the jurisdiction to consider matters regarding the separation of powers. NGCOBO J held as follows at para 24-27:

“(24) The principle underlying the exclusive jurisdiction of this Court under section 167(4) is that disputes that involve important questions that relate to the sensitive areas of separation of powers must be decided by this Court only. Therefore, the closer the issues to be decided are to the sensitive area of separation of powers, the more likely it is that the issues will fall within s 167(4). It follows that where a dispute will require a court to decide a crucial political question and thus intrude into the domain of Parliament, the dispute will more likely be one for the exclusive jurisdiction of this Court…

(26) A review by a court of whether Parliament has complied with its obligation under s 72(1)(a) calls upon a court to intrude into the domain of a principal legislative organ of the state. Under our Constitution, this intrusion is reserved for this Court only…

(27) A construction of s 167(4)(e) which gives this Court exclusive jurisdiction to decide whether Parliament has complied with its constitutional obligation to facilitate public involvement in its legislative processes is therefore consistent with the principles underlying the exclusive jurisdiction of this Court. An order declaring that Parliament has failed to fulfil its constitutional obligation to facilitate public involvement in its legislative process and directing Parliament to comply with that obligation constitutes judicial intrusion into the domain of the principle [sic] legislative organ of the state. Such an order will inevitably have important political consequences. Only this Court has this power.”

[49]	Section 110(2)(d) of the Constitution of Zimbabwe recognises, as an executive function, the

making of appointments by the President. The question whether the President has failed to properly

make an appointment as directed by the Constitution is a matter that requires the Court to intrude

into the executive functions of the President and hence it falls squarely within the exclusive

jurisdiction of this Court. In Von Abo v President of the Republic of South Africa 2009 (5) SA 345

(CC) the South African Constitutional Court held that a decision of the President that flows directly

from the Constitution and that relates to the relationship between the judicial and executive branches

of the State generally falls within the exclusive jurisdiction of this Court. Moseneke DCJ remarked

as follows at para 36:

“It however remains a complex question whether a specific power exercised by the President under the Constitution or other law amounts to a “constitutional obligation” which only this Court may decide. It is neither prudent nor pressing to describe what amounts to a constitutional obligation under s 167(4)(e) any more so than I have done. Even so, ready examples of constitutional obligations specifically entrusted to the President may be found in s 84(2) of the Constitution. Many of the powers and obligations in s 84(2) vest in the President as Head of State and head of the national executive. These duties may correctly be described as functions the Constitution requires him or her to perform. Ordinarily they would be matters that have important political consequences and which call for a measure of comity between the judicial and executive branches of the state. Some of the obligations do relate to decisions on crucial political questions, referred to in Doctors for Life and necessarily implicate separation of powers issues. Moreover, the decisions to be tested for constitutional compliance are those of the highest office of the Head of State and the head of the national executive. And for that reason the Constitution provides that disputes of that order must be decided by this Court only.”(emphasis added)

[50]	Since this matter concerns the exercise of executive powers which the Constitution requires the President to perform and has a direct impact on the comity between the judicial and executive branches of government, it is only this Court which can exercise its jurisdiction on the matter. It is not merely a question of compliance with procedural requirements for validity but has everything to do with constitutional obligations entrusted upon the President by the Constitution.

[51]	In this case, the obligations on the President under s 259(3) as read with s 180 of the Constitution are not simply procedural requirements as to validity but are substantive obligations specifically imposed on the President by the Constitution.  Whether the failure by the President to provide reasons for rejecting the first list of nominees and whether his failure to insist on a second round of interviews before the Judicial Service Commission submitted the second list constitute such obligations and, if so, whether the President failed to comply with such obligations are issues that only this Court, by constitutional demand, must determine.  The point in limine raised in this regard must therefore fail.

CITATION OF THE CHIEF JUSTICE

[52] 	There can be no doubt, from the papers, that the Chief Justice has been sued in his official capacity.  He is the Chairperson of the Judicial Service Commission, itself a corporate entity capable of suing and being sued.  Mr Uriri, for the second and third respondents, has submitted that, absent an allegation that the Chief Justice went on a frolic of his own, there was no basis for him to be cited in these proceedings.  Moreover, no specific relief is sought against him or the Commission and whatever remedy the applicant seeks is against the President.

[53]	 I agree with learned counsel for the second and third respondent that there really was no need to cite the Chief Justice in his official capacity in these proceedings.  No relief was sought against him.  Whatever he is alleged to have done was, on the applicant’s own version, done in his official capacity.  The relief the applicant seeks from the court could have been obtained without the need to cite the Chief Justice as a party to these proceedings.

[54] 	Sight must not be lost of the fact that, when the applicant approached this court, he sought relief against the President in terms of s 167(2) of the Constitution.  He was alleging a failure by the President to fulfil a constitutional obligation.  It is difficult to see how the Chief Justice or anyone else for that matter could have properly been made a party to that litigation.  Had the applicant instituted review proceedings against the Judicial Service Commission and the Chief Justice in the High Court alleging impropriety or bias on the part of the Chief Justice, then, perhaps, the situation may well have been different.  But that is not the case before this Court.

[55] 	In a recent decision in Temba Mliswa v Parliament of the Republic of Zimbabwe CCZ 2/21 this Court has made it clear that no other person should be cited in a s 167(2) application. At p 8 of the judgment, this Court remarked as follows:

“The special jurisdiction, not being inherent, cannot be invoked over all persons and over all constitutional matters. In particular, it being a special vehicle to hold the other two organs of state accountable, the exclusive jurisdiction of this Court cannot be invoked to inquire into the conduct of other state agencies who are not Parliament or the President. For these other actors, common law causes of action abound and the jurisdiction of this Court over such matters is shared with the other courts in the land as stated in passing above. Put differently, the only permissible respondents under an application in terms of s 167 (2) (d) are Parliament or the President. Therefore, and limiting myself to the facts of this matter, the special jurisdiction cannot be invoked to determine whether the conduct of the Speaker, for instance, was a failure to fulfil a constitutional obligation.

On the basis of the above, I wish to comment once again in passing that it is impermissible to join another party as respondent to an application brought under s 167 (2) (d) as submitted and suggested by counsel for the respondent.”

[56] 	Everything considered therefore, I reach the conclusion that it was unnecessary and irregular for the applicant to cite the Chief Justice and the other respondents in a suit directed at the President alleging the failure to fulfil a constitutional obligation.  It goes without saying that the constitutional obligations imposed on the President in terms of the Constitution are not the same as those imposed on the Chief Justice and it is difficult to envisage a situation where other state functionaries are made respondents in an application alleging the failure to fulfil a constitutional obligation by the President.

PROPRIETY OF APPLICANT’S SUPPLEMENTARY HEADS OF ARGUMENT

[57] 	These were filed by the applicant about a week after the filing of the main heads of argument.  The applicant says these were filed in order to “deal with certain jurisprudential and philosophical considerations which illuminate the main heads”. None of the respondents had filed heads as at that date, with the first respondent’s heads being filed only on 23 April 2019.  It is the fifth respondent’s contention that the supplementary heads of argument should be ignored and, further, that they be expunged from the record.  For this proposition the fifth respondent relied on the decision of the High Court in Sheriff for Zimbabwe v Local Authorities Pension Fund HH 585/16.

[58] 	Rule 238 of the High Court Rules deals with the filing of heads of argument but says nothing about the filing of supplementary heads of argument.  In the Sheriff for Zimbabwe case, supra, the High Court ruled that any attempt to file supplementary heads of argument must be done in accordance with the rules that govern the filing of documents out of time.  The Constitutional Court Rules, 2016 in r 39 also provide for the filing and service of heads by an applicant or appellant within fifteen days after the date of notification by the Registrar.  In other words, heads of argument in a contested application in this Court are not filed at the whim of an applicant but rather at the behest of the Registrar so that the set down process may be triggered.

[59] 	I agree with the conclusion of the High Court in The Sheriff of Zimbabwe case, supra, that a party seeking to file supplementary heads may only do so with the leave of the court.  A request for such supplementary heads to be filed and the reason why such heads were not filed in the first place must accompany such a request. A situation where a party, without reference to the court or the other party, suddenly files supplementary heads of argument is neither proper nor conducive to the smooth administration of justice.  The other party to the application may well wish to respond to the supplementary heads by filing his/her own supplementary heads.  Such a process can only function if it is court-driven and not left to the whims of the parties to file such supplementary heads at their convenience. There could even be issues of wasted costs that may well need to be determined by the court.  Everything considered, therefore, the applicant’s supplementary heads of argument, spanning thirty three (33) pages, compared to the initial heads which spanned twenty five (25) pages, were irregularly filed.  It is accordingly ordered that they be expunged from the record.

FOUNDING AFFIDAVIT PREDICATED ON HEARSAY EVIDENCE

[60] 	As noted earlier in this judgment, the applicant’s founding affidavit is largely predicated on hearsay evidence.  Whilst it is common cause that the President did not give reasons for rejecting the first list and that fresh interviews were not conducted before the second list was produced, it is apparent that everything else he claims happened is predicated on either first hand or second hand hearsay.  The applicant makes this very clear in his papers.  In his founding affidavit he, as already noted, says he got this information “from some of the commissioners who have been reluctant to file affidavits in support of this application” and that he was “prepared to subpoena them should anyone put a false position before the court on oath”.  He then proceeds in the affidavit to state that:

“(29) … in December 2018, the first respondent (i.e. the President) called the third respondent (the Chief Justice) for a meeting that was to take place at Munhumutapa Building ….

(30) At the meeting, the first respondent advised that he was not prepared to appoint any of the three gentlemen whose names had been forwarded to him ….

(31) First respondent then went on to indicate that he was only prepared to appoint the fifth respondent.  To that revelation, third respondent made the indication that even if another list was to be compiled following upon the manner in which the ten candidates had been scored, fifth respondent would still not make it as he was outside the top six.  I am advised by those who attended the meeting and have confirmed by independent research that first respondent then retorted that he was going to see what he would do….

(32) After the meeting, the third respondent individually called the second respondent commissioners advising them of first respondent’s position … There was no meeting.  It is that list that was used to make the appointment of 23 January 2019.  I point out however, that the fourth respondent’s Secretary (Mrs Virginia Mabhiza) was quoted by the Business Times on 24 January 2019 as suggesting that first respondent had received a single big list which had ranked all candidates from 1-10….”

[61] 	In his heads of argument the applicant has further stated:-

“5.5. 	In this matter we are told that a list which had more than three names was prepared – see the remarks of Virginia Mabhiza. That is unlawful………

5.6. 	 Even if we go by one of the stories told (the stories being many) which is that there was a list which made fifth respondent sit in the top six, there would be the following issues with that story….

5.7.  	First respondent definitely got it wrong in relying on either a longer list or a further one that was mysteriously generated after rejection of the first ……

6.3. 	 …… If we allow for a construction to the constitution which allows the JSC to come up with two lists out of a single interview process, there would be need for such two lists to exist transparently ……

7.1. 	…….”

[62] 	There can be no doubt that the foregoing allegations were all predicated on hearsay.  In no uncertain terms the applicant states in his founding affidavit that he received the information that the fifth respondent had not made it to the top six of those interviewed from “some of the commissioners who had been reluctant to file affidavits in support of this application”.  That evidence would be first hand hearsay.  Then he says the President called the Chief Justice to his office where he made it clear that he was only prepared to appoint the fifth respondent to the position. He further says that pressure had been brought to bear on the Chief Justice who subsequently telephonically contacted the other commissioners following which another list was prepared and forwarded to the President.  It goes without saying that none of the commissioners he alleges gave him the information that the fifth respondent had not made it to the list of the six best candidates could have been present at Munhumutapa Building when the President allegedly brought pressure to bear on the Chief Justice.  This evidence is at best, first hand hearsay and, at worst, second hand hearsay.

HEARSAY EVIDENCE INADMISSIBLE IN APPLICATION PROCEEEDINGS

[63] 	As a general rule, and subject to s 27 of the Civil Evidence Act [Chapter 8:01], an applicant in motion proceedings cannot depose to an affidavit if the facts are not within his knowledge.  Rule 16(3) of the Rules of this Court makes this very clear.  That rule provides:

“(3) A court application shall –

be supported by an affidavit deposed to by a person who can swear positively to the facts, which details the facts and the basis on which the applicant seeks relief; together with any supporting documents which are relevant….”

[64] 	In a similar vein, the authors, Herbstein and Van Winsen, Civil Practice of the High Courts of South Africa, 5 ed, Vol 1 at p 444 state as follows:

“As a general rule, subject to the provisions of the Law of Evidence Amendment Act, 1988, hearsay is not permitted in affidavits.  It may accordingly be necessary to file affidavits of persons other than the applicant who can depose to the facts.  Indeed, this is very often done.  Alternatively, when a deponent includes in an affidavit facts in respect of which he does not have first-hand knowledge a verifying affidavit may be annexed by a person who does have knowledge of those facts.

In interlocutory matters (as distinct from matters in which the rights of parties concerned are finally decided) where urgency or other special circumstances appear to justify its doing so, the court has allowed the deponent to state that “he is informed and verily believes” certain facts on which relief is relied.  In such cases, however, the applicant is required to set out in full the facts upon which the grounds for the belief are based and how the information was obtained. The source of the information must be disclosed with a degree of particularity sufficient to enable the opposing party to make independent investigations, including, if necessary, verification of the statement from the source itself.”

[65] 	The above remarks correctly reflect the practice in the courts of this country as regards hearsay evidence in motion proceedings.  In Bubye Minerals (Pvt) Ltd & Another v Rani International Ltd 2007 ZLR (1) 22 (S), the Supreme Court of Zimbabwe dismissed the appeal on the sole basis that, in the court a quo, the depondent to the affidavit that founded the application had no personal knowledge of the transactions alleged in the affidavit, as he was not yet in the employ of the applicant.  The court further remarked that:-

“a useful test would be to ask whether the deponent to the affidavit would be a competent viva voce witness to the facts were he called to testify” (at p 25 C-D)

[66] 	In Jean Hiltumen v Osmo Juhani Hiltumen HH 99/08 the High court of Zimbabwe (per MAKARAU JP (as she was then)) adopted much the same approach in respect of hearsay evidence that constituted the entire founding affidavit. At pp 4-5 of the unreported judgment, in dismissing the application, the learned judge remarked as follows:-

“The authorities in South African law are quite clear that unless it is in urgent interlocutory applications, hearsay evidence remains inadmissible in affidavits.  While I have not been able to find any local cases where the Pountas and Levins’s cases have been cited and directly applied in Zimbabwe, it seems to me that the two decisions correctly state the practice of this Court, albeit one that has to some extent been amended by the relaxation to the rule against hearsay evidence provided for in s 27 of the Civil Evidence Act [Chapter 8:01] (“the Act”), making first hand hearsay admissible on conditions……………………….

……… for first hand hearsay to be admissible under the Act, the evidence must be about a statement made orally or in writing by another person.  The person who made the statement must in my view be identified and it must appear from the nature of the evidence that the contents of the evidence would have been admissible from the mouth of that person were he or she present and testifying.  Thus, if the statement was for instance on an opinion held by that other person, because opinion evidence is inadmissible  from the mouth of any witness other than expert witnesses, the evidence would remain inadmissible notwithstanding the amendment to the law.  Similarly, second and third hand hearsay remains inadmissible….

In my view, the legal position remains clear that hearsay evidence is inadmissible in affidavits filed with court applications, unless it is evidence of a statement made by a person, where such a statement would have been admissible had it been adduced as direct evidence by the maker of the statement. Hearsay evidence may be admissible, as per the practice of this Court, in urgent and interlocutory applications where an explanation as to why direct evidence cannot be led is tendered and the basis of belief and information by the deponent is fully given in the affidavit ….”

[67] 	In the present case the source of the information is said, in part, to be “some of the Commissioners”. The basis of the belief by the applicant is not given.  The events at Munhumutapa are said to have been disclosed “by those who attended the meeting and … confirmed by independent research ….” Who these people are and what the independent research carried out was are both not disclosed.  The basis of the belief by the applicant is not given.  In all the circumstances it is impossible to ascertain whether, if the source of the information were present before this Court and testifying, such detail as is supplied by the applicant would have been admissible from the mouth of those persons.

[68] 	Assuming, arguendo, that the evidence is first hand hearsay and admissible in terms of s 27 of the Act, there is a further reason why the evidence would remain largely worthless.  Section 48 of the Act gives this Court the discretion to exclude or refuse to allow evidence which is likely to cause undue prejudice to a party to the proceedings, and, in doing so, the court shall have regard, inter alia, to the probative value of such evidence. Section 51 in turn provides that the fact that any evidence is rendered admissible by this Act shall not oblige the court to believe it or to rely on it.

[69] 	Serious allegations of impropriety have been made on the basis of hearsay evidence against the President, the Judicial Service Commission and the Chief Justice.  The exact source of the information remains largely unknown and such evidence cannot, for obvious reasons, be tested in cross-examination.  Were the evidence to be admitted, serious prejudice would, no doubt, ensue to the three respondents as there would be no way to test the veracity of that evidence.

[70] 	In all the circumstances therefore, I reach the conclusion that the hearsay evidence on the basis of which the applicant has made scurrilous claims against the three respondents cannot be admitted.  It is not only inadmissible but has no probative value in this matter.

AN APPLICANT STANDS OR FALLS BY HIS/HER FOUNDING AFFIDAVIT

[71] 	The position has repeatedly been stressed by the courts in this jurisdiction and elsewhere that an applicant in motion proceedings stands or falls by his founding affidavit and the facts alleged in it.  Although it is sometimes permissible to supplement the allegations contained in the founding affidavit, still the main basis of the application is the allegation of facts alleged therein – J.C. Conolly and Sons (Private) Limited v (1) R.C. Ndhlukula (2) The Minister of Lands and Rural Resettlement SC 22/18.  This is how it should be, because the founding affidavit informs the respondent of the case he or she must meet or the facts he is called upon to affirm or deny – Moven Kufa and Voice for Democracy Trust v The President of the Republic of Zimbabwe and Nine Ors CCZ 22/17.

[72] 	The allegations made by the applicant that are predicated on hearsay have been found to be inadmissible.  That being the position, what remains of the founding affidavit are the averments made that the President, in rejecting the first list of candidates recommended by the Judicial Service Commission, failed to give reasons and, secondly, that in relying on a second list that had not been produced pursuant to a fresh round of interviews, failed to fulfil constitutional obligations imposed upon him by the Constitution.  That the President gave no reasons for the rejection of the first list of candidates and that no further interviews were conducted is common cause.  The question therefore is whether on those common cause facts, there is a basis for a determination that the President failed to fulfil a constitutional obligation. Before determining this substantive issue, I deal first with the further submission by the second and third respondents that the present application is an abuse of process and should be summarily dismissed.

WHETHER THE APPLICATION SHOULD BE DISMISSED SUMMARILY

[73]	It is correct, as Advocate Uriri eloquently articulated, that this Court has the inherent jurisdiction to summarily disallow proceedings that amount to an abuse of the process of the court. See Ushewokunze Housing Co-operative Society Limited v Crest Breeders International (Private) Limited HH 529/16; Rogers v Rogers & Another 2008(1) ZLR 330.  This is usually the case where the proceedings are not bona fide, but frivolous and absurd.  The proceedings must be obviously unsustainable or manifestly groundless, or utterly hopeless and without foundation.  Case law authority suggests that to bring an application within this description, there should be grounds upon which the court can formulate an opinion that the application is clearly so groundless that no reasonable person can possibly expect to obtain relief from it.

[74]	There is however a rider to the above proposition.  A court should be slow in coming to such a conclusion.  The inference should appear as a certainty and not merely on a preponderance of probability.

[75]	Applying the above principles to the facts of this matter, a conclusion that the proceedings are manifestly groundless would have been appropriate had the application been predicated solely on hearsay evidence which, as I have found, is inadmissible and of no probative value.  But that is not the position in this case.  Whilst a substantial portion of the applicant’s complaint, in particular the allegation that the President brought pressure to bear on the Chief Justice to create a second list with the fifth respondent’s name on it, is predicated on hearsay, the other part of his complaint is based on facts that are common cause.  These are, firstly, that the President gave no reasons for his rejection of the first list and, secondly that no further interviews were conducted before the Judicial Service Commission submitted the second list of candidates for consideration by the President.  Part of the dispute in this case is whether there was an obligation on the President to insist on further interviews.

[76]	In these circumstances, it cannot be said that the dispute is entirely illusory and utterly groundless.  The dispute revolves around the interpretation of the relevant constitutional provisions and is one that this Court can appropriately adjudicate upon.  In the circumstances, I am unable to accede to the suggestion that the application should be summarily dismissed or disallowed on the basis that it is frivolous or vexatious.

WHETHER THERE IS A CONSTITUTIONAL OBLIGATION ON THE PRESIDENT TO PROVIDE REASONS

[77]	As already noted, it is the applicant’s case that there is an unwritten but implied obligation imposed on the President that requires him to state the reasons for rejecting a list given to him by the Judicial Service Commission. The President, on the other hand, contends that s 180 of the Constitution gives him the discretion, acting on his own judgment, to appoint a candidate of his choice from the list of three qualified persons provided to him by the Judicial Service Commission. To determine whether or not there is an obligation placed upon the first respondent by the Constitution to proffer reasons for rejecting the first list given to him by the Judicial Service Commission, there is need to interpret the provisions of the Constitution governing the appointment of the Prosecutor-General of Zimbabwe.

[78]	Section 259(3) of the Constitution provides for the appointment of the Prosecutor-General.  That section, before the recent amendment to the Constitution, provided as follows:

“259 Prosecutor-General and other officers

(3) The Prosecutor-General is appointed by the President on the advice of the Judicial Service Commission following the procedure for the appointment of a judge.”

[79]	It is axiomatic, regard being had to the above provision, that it was the prerogative of the President, at the relevant time, to appoint the Prosecutor-General on the advice of the Judicial Service Commission following the procedure for the appointment of a judge. The recent amendment to the Constitution has now removed the need, in the case of the appointment of the Prosecutor-General, to follow the procedure for the appointment of a judge. The procedure for the appointment of a judge, and by extension the Prosecutor-General, was contained in ss (4) and 5 of s 180 of the Constitution which provided as follows:

“180 Appointment of judges

(1) – (3) … (not relevant)

(4)   Whenever it is necessary to appoint a judge other than the Chief Justice, Deputy Chief Justice or Judge President of the High Court, the Judicial Service Commission must—

advertise the position; and

invite the President and the public to make nominations; and

conduct public interviews of prospective candidates; and

prepare a list of three qualified persons as nominees for the office; and

submit the list to the President; whereupon, subject to subs (5), the President must appoint one of the nominees to the office concerned.

(5) 	If the President considers that none of the persons on the list submitted to him or her in terms of subs (4)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned.” (underlining is for emphasis)

[80]	It is subs (5) of s 180 of the Constitution which lies at the centre of the dispute in this case. The question for determination is whether this section casts an obligation upon the President to state the reasons why he is rejecting the first list given to him by the Judicial Service Commission following the processes outlined in s 180(4)(a)-(e) of the Constitution. The question is therefore one of interpretation.

[81]	This Court has pronounced in various decided cases the correct approach in interpreting provisions of the Constitution.  For example, in Mawarire v Mugabe & Ors CCZ 1/13 at p 46, patel ja, in a minority judgment, remarked as follows:

“In general, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of statutes. One must look to the words actually used and deduce what they mean within the context in which they appear. See Hewlett v Minister of Finance 1981 ZLR 571 (S) at 580. If the words used are precise and unambiguous, then no more is necessary than to expound them in their natural and ordinary sense. See The Sussex Peerage (1843-1845) 65 RR 11 at 55. In essence, it is necessary to have regard to the words used and not to depart from their literal and grammatical meaning unless this leads to such an absurdity that the Legislature could not have contemplated it.”

Attention is also drawn to the remarks of gwaunza jcc (as she then was) in Chihava and Others v Principal Magistrate and Another 2015 (2) ZLR 31 (CC) at 35F-36E

[82]	In interpreting the provisions of the Constitution, it is correct that one must adopt a broad and generous approach. One must also ensure that all the relevant provisions on the subject are considered. This position was underscored in Attorney-General v Dow [1992] BLR 119 (CA) at 131-132, per Amissah P, as follows:

" ... the very nature of a Constitution requires that a broad and generous approach be adopted in the interpretation of its provisions; that all the relevant provisions bearing on the subject for interpretation be considered together as a whole in order to effect the objective of the Constitution;... "

[83]	 It is also now settled that constitutional interpretation unavoidably involves more than the determination of the literal meaning of particular provisions.  In fact, even where there is an apparently self-evident literal meaning that can be given to a constitutional provision, the proper interpretation of the provision may entail going beyond that meaning - The Bill of Rights Handbook by Ian Currie & Johan De Waal, at p 136.

[84] 	The ordinary and grammatical meaning of s 180 (5) is that the President has a discretion to reject a list submitted to him in terms of s 180(4)(e) and, in that event, to request the Judicial Service Commission to submit a further list to him from which he is then obliged to appoint the Prosecutor-General. There are no specific criteria that the President is obliged to take into account before rejecting the first list nor is there a requirement for him to proffer reasons for considering none of the candidates on the first list as being suitable for appointment. The suggestion to the contrary that there are such obligations would amount to an impermissible imposition of an obligation that is otherwise not contemplated by the Constitution.  Nor is there a requirement on the President, in the circumstance where he accepts the first list, to explain why he has selected a particular candidate out of the three names submitted to him. Had the Legislature intended to impose such obligations on the President, it would certainly have said so.

[85]	Per contra, s 174(4)(c) of the 1996 South African Constitution specifically requires the President to proffer reasons for considering any nominees as unsuitable for appointment. The provision reads as follows:

“174 Appointment of judicial officers

(4)    The other judges of the Constitutional Court are appointed by the President, as head of the national executive, after consulting the Chief Justice and the leaders of parties represented in the National Assembly, in accordance with the following procedure:

The Judicial Service Commission must prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President.

The President may make appointments from the list, and must advise the Judicial Service Commission, with reasons, if any of the nominees are unacceptable and any appointment remains to be made.” (emphasis added)

[86]	In Joyce Teurai Ropa Mujuru v The President of Zimbabwe & Ors CCZ 8/18 this Court cited with approval remarks by the South African courts that where one alleges a failure to fulfil a constitutional obligation, one must identify the functionary and the duty specifically imposed by the Constitution on that functionary and the impugned conduct that is in issue. This Court remarked as follows:

“(25)  In Von Abo v Government of the Republic of South 2009 (2) SA 526(T), in defining a failure to fulfil a constitutional obligation, the court stated thus:

“In Doctors for Life, NGCOBO J, writing for the court, observed that the word “obligation” connotes a duty specifically imposed by the Constitution on Parliament to perform specified conduct.  It seems to me that by parity of reasoning the same consideration applies to an “obligation” relating to the President.

The Constitution carefully apportions powers, duties and obligations to organs of State and its functionaries.  It imposed a duty on all who exercise public powers to be responsible and accountable and to act in accordance with the law.  This implies that a claimant who seeks to vindicate a constitutional right by impugning the conduct of a state functionary, must identify the functionary and its impugned conduct with reasonable precision.

(26)     In Economic Freedom Fighters v Speaker of The National Assembly and Ors; Democratic Alliance Speaker of The National Assembly & Ors 2016 ZACC 11, the court stated:

“An alleged breach of a constitutional obligation must relate to an obligation that is specifically imposed on the President or Parliament.  An obligation shared with other organs of State will always fail the s 167(4)(e) test.”

[87]	In the absence of a specific requirement to proffer reasons, such as is to be found in the South African Constitution, there would be no basis for reading into the Constitution such an ‘unwritten obligation’. The ordinary and grammatical meaning of s 180 (5) of the Constitution points to the prerogative power and discretion on the part of the President to refuse to appoint anyone he deems not suitable for appointment to the office of the Prosecutor-General. What the applicant calls constitutional obligations are matters not provided by the Constitution, whether expressly or by necessary implication.  How the President makes a choice from the list is not a constitutional obligation that is subject to scrutiny or interrogation under s 167(2)(d) of the Constitution.

PRINCIPLE OF SUBSIDIARITY APPLICABLE IN ANY EVENT

[88]	In general, the procedure followed by the President and the Judicial Service Commission, being administrative authorities, must comply with the provisions of s 68 of the Constitution. That section provides:

“68 Right to administrative justice

(1) 	Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.

(2) 	Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct.

(3) 	An Act of Parliament must give effect to these rights, and must—

(a) 	provide for the review of administrative conduct by a court or, where appropriate, by an independent and impartial tribunal;

(b) 	 impose a duty on the State to give effect to the rights in subsections (1) and (2); and

(c)        promote an efficient administration.”

[89]	Section 68 of the Constitution is given effect to by the Administrative Justice Act [Chapter 10:28] (hereinafter referred to as ‘AJA’). Of particular significance to the present matter is the fact that PART I of the Schedule to AJA provides a list of administrative actions in respect of which one cannot obtain an order compelling the supply of reasons in terms of s 3(1)(c) and 6 of the same Act. One such exclusion relates to “3. Decisions relating to the appointment of judicial officers” and “2. any exercise or performance of the executive powers or functions of the President or cabinet”.

[90]	In terms of AJA there is therefore no obligation on the part of the President to supply reasons for rejecting the first list submitted by the second respondent in the appointment process for the judges. The same position equally applies to the process for the appointment of the Prosecutor-General as contemplated by s 259(3) of the Constitution.

[91]	The principle of subsidiarity dictates that where a provision in the Constitution is given effect to by legislation, one cannot rely on the Constitution directly without properly challenging the subsidiary legislation enacted to give effect to that provision. This is part of our law and that of South Africa. I cite two decided cases in both jurisdictions to put the matter beyond doubt. The first is the decision of the Constitutional Court of South Africa in South African National Defence Union v Minister of Defence and Others 2007 ZACC 10, in which the court stated:-

“Where legislation is enacted to give effect to a constitutional right, a litigant may not bypass that legislation and rely directly on the Constitution without challenging that legislation as falling short of the constitutional standard.”

The second is the decision of this Court in Zinyemba v Minister of Lands and Rural Settlement & Anor CCZ 3/16. At p 8 of the judgment, this Court stated as follows:-

“Two principles discourage reliance on the constitutional rights to administrative justice.  The first is the principle of avoidance which dictates that remedies should be found in legislation before resorting to constitutional remedies.  The second principle is one of subsidiarity which holds that norms of greater specificity should be relied on before resorting to norms of greater abstraction. The applicant is not challenging the constitutional validity of any provision of AJA nor is she seeking to use the constitutional rights to administrative justice to interpret the provisions of AJA.  The exceptional circumstances in which an applicant can rely on the constitutional rights to administrative justice do not apply to the applicant.  She ought to have used the remedies provided for under AJA to enforce her rights to just administrative conduct.”

[92]	In the present matter, the applicant has not challenged the constitutional validity of Part I of the Schedule to the Administrative Justice Act which has expressly excluded the requirement to give reasons in respect of the exercise or performance of the executive powers or functions of the President and Cabinet and decisions relating to the appointment of judicial officers. In the absence of such a challenge, there is a presumption of validity of the legislation until such a time as the exemption is struck down by a competent court. See The Registrar General of Elections v Combined Harare Residents Association & Anor SC 7/02, at p 8 of the judgment.

[93]	Given the foregoing, the conclusion is ineluctable that there is no constitutional obligation on the part of the President to give reasons for considering none of the nominees on the first list to be suitable for appointment to the office of the Prosecutor-General. The Constitution does not say so. Neither can it be said such an obligation arises by necessary implication. In any event AJA specifically exempts the President from the obligation to give reasons in these circumstances.

[94]	A number of foreign jurisdictions have acknowledged the need to protect the confidentiality of the deliberations of certain state functionaries in order to preserve their ability to speak freely and frankly without public scrutiny. In Babcock v Canada (Attorney General) 2002 SCC 57; [2002] 3 SCR 3 para 40, the Supreme Court of Canada explained the need to protect the confidentiality of cabinet minutes thus:

“Those charged with the heavy responsibility of making government decisions must be free to discuss all aspects of the problems that come before them and to express all manner of views, without fear that what they read, say or act on will later be subject to public scrutiny …. If Cabinet members’ statements were subject to disclosure, Cabinet members might censor their words, consciously or unconsciously. They might shy away from stating unpopular positions, or from making comments that might be considered politically incorrect…… . The process of democratic governance works best when Cabinet members charged with government policy and decision-making are free to express themselves around the Cabinet table unreservedly.”

See also Conway v Rimmer [1968] UKHL 2; [1968] AC 910 at 952. Carey v Ontario [1986] 2 SCR 637 paras 50-51.

[95]	There is no reason why the same considerations should not apply to the President of Zimbabwe, who also makes politically sensitive decisions of great constitutional import. It must have been with the above in mind that Part 1 of the Schedule to the Administrative Justice Act has exempted “any exercise or performance of executive powers or functions of the President and Cabinet” from compliance with ss 3(1)(c), 3(2) and 6 of the Act.

WHETHER OR NOT THE FIRST RESPONDENT OUGHT TO HAVE MANDATED THE SECOND RESPONDENT TO CONDUCT FRESH INTERVIEWS BEFORE PRODUCTION OF THE SECOND LIST

[96]	It has been contended by the applicant that, having rejected the first list, the President should have caused the Judicial Service Commission to conduct further interviews for the purposes of compiling a second list from which the President is then obliged to appoint a Prosecutor-General. It is the applicant’s case that the creation of the second list must be a verifiable and transparent process which can only eventuate pursuant to a second round of interviews.

[97]	Where the language of the Constitution is clear and unambiguous, the court should give effect to it taking into account the context in which the law was made. Section 180(4) of the Constitution obliges the Judicial Service Commission to conduct public interviews for the prospective candidates and thereafter submit a list of three nominees to the President. If the President considers none of the nominees are suitable for appointment, he must require Judicial Service Commission to submit a further list of three qualified persons from which he is obliged to appoint one person to the office of the Prosecutor-General. The Constitution does not expressly or implicitly make provision for a further interviewing process in order to come up with the second list. Having deliberately gone out of its way to make provision for public interviews to be conducted before the Judicial Service Commission submits the first list of three names to the President, the legislature, had that been its intention, would surely have made provision for further interviews before the submission of the second list to the President.  Instead all it provided for was that the President may merely “require” the Judicial Service Commission to provide another list.

[98]	As noted earlier in this judgment, one who alleges a failure to fulfil a constitutional obligation must identify the functionary and the constitutional obligation he/she is alleged to have failed to fulfil.  In this matter there is no obligation imposed on the President by the Constitution to ensure that a second round of interviews is conducted before the Judicial Service Commission submits the second and final list to him.

DISPOSITION

[99]	There is no constitutional obligation on the President to give reasons for rejecting the first list submitted to him by the Judicial Service Commission. The President is endowed with a prerogative power to use his discretion in determining whether or not the candidates submitted to him are suitable for appointment. Section 110 of the Constitution makes this clear.  The only restriction to the power of the President is that he is mandated to appoint one of the nominees recommended to him by the Judicial Service Commission on the second list. There is also no specific or implied requirement for a second interview to be conducted for the purposes of compiling the second list. The Constitution does not impose on the President the obligation to ensure that a second round of interviews is conducted by the Judicial Service Commission once he rejects the names on the first list submitted to him.

[100] 	On the question of costs, I consider that a costs order is warranted in this case.  Scurrilous allegations, based on hearsay and imputing criminal conduct, have been made against the President, the Judicial Service Commission and the Chief Justice.  No iota of evidence has been produced to back up such serious allegations.  Whilst it is the normal practice in constitutional matters not to mulct a losing party with costs, this case is different.  The applicant must have appreciated that he could not, without consequences befalling him, make such serious allegations against the President, the Chief Justice and the Judicial Service Commission and yet proffer no evidence in support thereof.  As stated in Motsepe v Commissioner of Inland Revenue 1997 (2) S.A 989 (CC), cited with approval in Joyce Teurai Ropa Mujuru v The President of Zimbabwe & Five Others, supra, the general approach by the court not to award costs in constitutional litigation should not be allowed to develop into an inflexible rule so that litigants are induced into believing that they are free to mount constitutional challenges, no matter how spurious the grounds for doing so may be or how remote the possibility may be that they will succeed.

[101] 	In the result, the following order is made:

“The application be and is hereby dismissed with costs.”

MAKARAU JCC		:		I agree

GOWORA JCC		:		I agree

HLATSHWAYO JCC	:		I agree

PATEL JCC			:		I agree

MAVANGIRA JCC		:		I agree

BHUNU JCC			:		I agree

MAKONI JCC		:		I agree

MATHONSI JCC		:		I agree

Lawman Chimuriwo Attorney’s, applicant’s legal practitioners

GN Mlotshwa & Company, Titan Law, fifth respondent’s legal practitioners