Chamunorwa Chingwe v Judicial Service Commission and President of the Republic of Zimbabwe and Minister of Justice, Legal and Parliamentary Affairs

### Preamble
1
HH 319-21
HC 2580/21
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CHAMUNORWA CHINGWE

versus

JUDICIAL SERVICE COMMISSION

and

PRESIDENT OF THE REPUBLIC OF ZIMBABWE

and

MINISTER OF JUSTICE, LEGAL AND

PARLIAMENTARY AFFAIRS

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 2, 4 June 2021 & 24 June 2021

Urgent Chamber Application – Ruling on preliminary objections

T. L Mapuranga, for the applicant

ABC Chinake, for the 1st respondent

T Magwaliba with G Madzoka & F Chimbaru, for the 2nd & 3rd respondents

CHITAPI J: The application before me is of great moment. It relates to current events on challenges to judicial appointments to superior courts of Zimbabwe. It is common cause that there has been and there are currently on going litigations in other pending cases on the issue of the said appointments. This application is therefore of public interest. It is specifically concerned with the appointment of judges of the Supreme Court and Constitutional Court in Zimbabwe.

The Parties

The applicant is Chamunorwa Chingwe, an adult male Zimbabwean citizen aged 27 years. The first respondent is Judicial Service Commission (JSC). It is a constitutional commission created by s 189 of the Constitution of Zimbabwe, 2013. The functions of the “JSC” are provided for in s 190 of the constitution. The “JSC’s” functions relative to this application are to recommend judges for appointments by the second respondent. The second respondent is the President of the Republic of Zimbabwe cited in his capacity as such. The third respondent is the Minister of Justice, Legal & Parliamentary Affairs also cited in his official capacity as such.

The applicant filed this urgent chamber application claiming relief as set out in the draft provisional order attached to his founding affidavit. It reads as follows-

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms-

All persons who are not sitting judges of the High Court, Labour Court and Administrative Court but who meet all the qualification in s 178 of the Constitution of Zimbabwe are eligible for appointment as judges of the Supreme Court.

The Judicial Service Commission must proceed in terms of s 180(4) of the Constitution of Zimbabwe prior to the appointment of any judges of the Supreme Court to enable persons who are not sitting judges of the High Court, Labour Court and Administrative Court to also be considered for such appointment together with the sitting judges of the High Court, Labour Court and Administration Court who may be appointed in terms of s 180(4) of the Constitution of Zimbabwe.

The Judicial Service Commission shall ensure that its recommendation to the President of Zimbabwe for appointments of judges of the Supreme Court shall be for eligible candidates who are best suited for the position whether they are sitting judges or not.

All persons who are not sitting judges of the Supreme Court but who meet all of the qualifications in s 177 of the Constitution of Zimbabwe are eligible for appointment as judges of the Constitution Court.

The Judicial Service Commission must proceed in terms of s 180(4) of the Constitution of Zimbabwe prior to the appointment of any judges of the Constitutions Court to enable persons who are no sitting judges of the Supreme Court to also be considered for such appointment together with the sitting judges of the Supreme Court who may be appointed in terms of s 180(4) of the Constitution of Zimbabwe.

The judicial Service Commission shall ensure that its recommendation to the President of Zimbabwe for appointment of judges of the Constitutional Court shall be for eligible candidates who are best suited for the position whether they are sitting judges of Supreme Court or not.

There shall be no order as to costs.

TERMS OF THE INTERIM ORDER SOUGHT

Pending determination of this matter, the applicant is granted the following relief:

The respondents are hereby interdicted and ordered not to proceed with the appointment of any substantive judges of either Supreme Court or the Constitutional Court without following the process of s 180(4) of the Constitution of Zimbabwe to allow for all persons who are not sitting judges to be considere4d for appointment for such positions.

SERVICE OF PROVISIONAL ORDER

The Sheriff of Zimbabwe, the applicant or her legal practitioners be and are hereby authorised to serve this provisional order upon the respondents.”

When the application was placed before me to deal with I set it down on 2 June 2021. On that date, after deliberating with counsel for the parties on the management of the hearing, I issued a consent order in terms of which, the applicant was granted leave to file an answering affidavit together with his heads of argument by 3.00 p.m. on 3 June 2021. The respondents were to file their heads of argument by 1.00 p.m. on 4 June 2021 and the hearing was to be convened at 2:30 p.m. on 4 June 2021 as well.

There was however a development which happened on 3 June 2021. On that date six High Court judges who comprised the Judges President, two acting judges of the Supreme Court who had been seconded from the High Court bench and three other High Court judges were sworn into office of Supreme Court judges after appointment by the second respondent in terms of s 180 of the Constitution 2013 as amended by s (6) of the Constitution of Zimbabwe Amendment (N0. 1) 2017 and s 13 of the Constitution of Zimbabwe Amendment (No. 2) Act, 2021. The Amendment Act No. 2 had been passed on 7 May 2021. The No. 2 amendment introduced subs 4(a) to s 180. The whole of s 180 of the Constitution now provides as follows–

“180 Appointments of judges

The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court and all other judges are appointed by the President in accordance with this section.

The Chief Justice, the Deputy Chief Justice and the Judge President shall be appointed by the President after consultation with the Judicial Service Commission

If the appointment of a Chief Justice, Deputy Chief Justice or Judge President of the High Court is not consistent with any recommendation made by the Judicial Service Commission in terms of subs (2) the President shall cause the senate to be informed as soon as is practicable; provided that; for the avoidance of doubt, it is declared that the decision of the President as to such appointment is final

Subject to subs (4a), whenever it is necessary to appoint a judge, other than the Chief Justice, Deputy Chief Justice, Judge President ort a sitting judge of the Supreme Court, High Court, Labour Court or Administrative Court to be a judge of the next higher court, the Judicial Service Commission must–

advertise the position; and

invite the President and the public to make nominations; and

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

submit the list to the President must appoint one of the nominees to the office concerned.

(4a) Notwithstanding subs (4) the President, acting on the recommendation of the Judicial Service Commission may, at any time whenever it is necessary to do so, appoint a sitting judge of the Supreme Court, High Court, Labour Court or Administrative Court to be judge of the next higher court.”

The first respondent in its opposing affidavit to the application raised six points in limine as follows–

(a)	that the certificate of urgency was invalid essentially because it did not explain the delay of twenty days between 7 May 2021 when Constitutional Amendment No. 2 which introduced subs (4a) became law and 20 May 2020 when five Supreme Court judges were appointed to the Constitutional Court. I leave open for now the issue of whether a certificate of urgency is invalidated by the omission by the certifying legal practitioners to justify or explain details of why the applicant did not act timeously in petitioning the court for relief. In the case of Andrew John Pascoe v Ministry of Lands and Rural Resettlement HH 11/17, I expressed the position that the certificate of urgency was more of a case management tool since in terms of rule 244 of the High Court Rules 171, the Registrar is required to immediately refer a chamber application which is accompanied by a certificate of urgency to judge “who shall consider the papers forthwith…”. Thus for purposes of determining the urgency or non-urgency of the matter, the Judge considers not just the certificate of urgency but all the papers comprising the application. The certificate of urgency should not be considered in isolation but as part and parcel of all documents which make up the application. The subject of what the certificate of urgency must embrace remains a point of argument and as I have previously indicated in the Andrew John Pascoe case, it is in the end, the applicant who must justify the urgency of the application in the founding affidavit. I should also mention that the second and third applicants referred in para 11 of their opposing affidavit to the invalidity of the certificate of urgency for its omission to allege the existence of applicants’ prima facie right to the relief for which he seeks.

(b)	that the application is not urgent. It was submitted that the applicant had all the facts it required in good time and could have brought an ordinary application instead of rushing to court on an urgent basis without proffering a reasonable explanation for not doing so. It was submitted that the applicant had not demonstrated a reasonable apprehension of any harm befalling him. The first respondent averred that the application was premature and ought to be struck off the roll of urgent matters.

In relation to urgency, the second and third respondents raised the same point in limine that the application was not urgent. It was submitted in their opposing affidavit deposed to by the Attorney General that the applicant’s allegation that he became aware of the impending appointment of Supreme Court Judges without the conducting of interviews on 26 May 2021 was an unsupported factual bold allegation. It was averred that the allegation was in the form of a rumour or suspicion and that the court could not be expected to make decisions formed on rumour. The second and third respondents also averred that the applicant did not act timeously from 7 May 2021 when the Constitutional Amendment Act which give rise to the application was promulgated as law until 20 days later when this application was filed. The second and third respondents averred that the application could not be said to be urgent when the applicant did not act with urgency and did not further proffer an explain for not taking action in that period.

(c)	that the application was premature. The first respondent averred that the application was based or founded upon speculation because no facts were alleged on the nature of the how the applicant acquired knowledge of consultations between the first and second respondents to appoint Supreme Court Judges. It was averred that rumours could not pass for evidence. The same point was raised by the second and third respondents as already noted.

(d)	that the applicant could not seek to prohibit lawful conduct by the second respondent in the exercise of the powers granted to the President by s 180(4) and 180(4a) in relation to appointment of Judges by the methods set out therein. The first applicant averred that the two methods of direct appointment of sitting Judges and interviews for persons not already sitting Judges was mutually inclusive and could be used alternately or inclusively. It was averred that the applicant had an alternative remedy of applying to set aside the amendment Act. It was submitted that an interdict could not prohibit lawful conduct. The first respondent prayed for dismissal of the application on this basis.

(e)	that the applicant lacks direct and substantial interest to institute the application. It was averred by the first respondent that the applicant lacked locus standi to seek the relief he sought on facts which he alleged. It was averred that the applicant at 27 years old did not qualify to be appointed a judge and neither was he a sitting Judge. It was further averred that to the extent that he purported to act in his own interest, he had no locus standi to seek a relief which he could not claim a right to. It was averred that the applicants’ papers were making a case for non-sitting Judges to be considered for appointment to the next higher court when the second respondent invoked the provisions of s 180(4a) of the Constitution. The applicant had however not pleaded that he was acting in any other of the capacities listed in s 85(1)a-e) other than in his own interests. For the avoidance of doubt s 85(1) of the Constitution provides as follows:

“85 Enforcement of fundamental human rights and freedoms

Any of the following persons, namely. -

any person acting in their own interests

any person acting on behalf of another person who cannot act for themselves

any person acting as a member or in the interests, of a group or class of persons;

any person acting in the public interests;

any association acting in the interests of its members

is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this chapter has been, is being, or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.

2……………….

3……………….

4………………..”

The second and third respondents raised a similar objection. It was averred in para 12 of the Attorney General’s opposing affidavit as follows:

“12 – Thirdly, the applicant lacks the necessary locus standi to bring the present proceedings. He has not shown any right or legal interest that would be harmed if the relief were not granted by the court. The legal interest must relate to him and not to any other person.”

The second and third respondents also averred that since the applicant purported to act in terms of s 85(1)(a) of the constitution, he was required to prove the infringement of a constitutional right in [Chapter 4] of the constitution.

The second and third respondents averred that although the applicant had alleged that his right to equal protection of the law was infringed, the applicant did not refer to s 56(1) of the constitution as the foundation for his application. He equally did not show how his s 56(1) right had been violated or been subjected to a threatened violation. It was averred that the applicant had wrongly quoted ss 177, 178 and 180 of the Constitution as the basis for his constitutional right to equal protection of the law, yet ss 177 and 178 dealt respectively with qualification of judges of the Constitutional and Supreme Court and s 180 dealt with procedures for the appointment of judges. It was averred that the provisions did not give a right to the applicant which he could seek to enforce because the applicant was not a judge to which the provisions related.

In response in the opposing affidavit, the applicant averred as follows in the answering affidavit, which must be read where necessary together with the founding affidavit. He averred that he had made out a prima facie case for the relief which he sought. He stated that there were now two methods for the appointment of Supreme Court and Constitutional Court Judges; the methods are as postulated in subs (4) and (4a) of s 180 of the Constitution. He averred that the interplay between the appointment of sitting Judges and persons who are not sitting Judges should happen. The applicant averred that it was not clear as to when the interview process must be used as opposed to the direct appointment process. The applicant averred that the interplay was ripe for interrogation on the return date.

The applicant in the answering affidavit averred that the respondents raised unmerited points in limine to obfuscate and subterfuge the application. The applicant averred that this court was mandated by s 85(3)(c) of the constitution to ventilate the merits of “infringements of rights without being unreasonably restricted by procedural technicalities.” I must note that s 85(3) (c) speaks to the requirement that rules of every court must provide for a procedure to be followed to obtain relief which may be sought in terms of subsection (1) of the same section 85. It is the rules of court which must ensure that “the court while observing the rules of natural justice; is not unreasonably restricted by procedural technicalities”. The respondent did not relate to any rules of court allegedly abused by the respondents in raising the point in limine. It was under the circumstances competent for the respondents to raise the in limine objections as they did because no rules of court were violated by their being pleaded.

In relation to urgency, the applicant averred that the need to act arose on 26 May 2021 after which he filed this application on 27 May 2021. He averred that the certificate of urgency was therefore “perfectly” valid. He denied that the need to act arose upon the promulgation of the Constitutional Amendment No. 2 Act because he did not seek to challenge the Act but its application. In his words, he stated in para (5)(b) of the answering affidavit that-

“This is an application enforcing the tenets of the Constitution of Zimbabwe as amended by the Act.”

In para (5) (c) of the same answering affidavit, the applicant averred as follows

“The need to act does not arise on the date of appointment of Constitutional Court judges (who all came out of the Supreme Court) but on the date I become (sic) aware that there are plans to appoint new Supreme Court judges who will clearly replace them. The same goes for the dismissal of a Supreme Court Judges.”

In para 6 of the answering affidavit, the applicant averred that it was not necessary to argue about how the applicant became aware of the alleged consultations on the impending appointment of judges because the first respondent admitted that such consultations took place in paras 13-14 of the first respondent’s affidavit. The applicant then averred that it became unnecessary to interrogate how the applicant knew of the consultations or their nature.  A careful reading of paras 13-14 of the first respondent’s opposing affidavit shows that no admission as alleged by the applicant was made. The position therefore remained that there was no factual basis pleaded to support the allegations of consultations having taken place involving the respondents for the appointment of Supreme Court judges which alleged fact was the basis for urgency and the need to act arising.

In regard to the alleged incompetent of the court to interdict lawful conduct as alleged by the respondents, the applicant stated as follows in the opposing affidavit in para 7.1

“The first respondent has clearly misunderstood the application which I make to the court. I did not seek to invalidate any law or undermine it. I seek to enforce and vindicate the law and the Constitution including s 180 of the Constitution of Zimbabwe (as amended by the Act). It cannot therefore be said that I seek to prohibit lawful conduct. I actually seek to prevent only unlawful conduct. Lawful conduct may continue. I do not seek to prevent appointment judges of the Supreme Court and Constitutional Court completely for any period of time. I seek to prevent appointment from an inadequate pool of potential candidates only.”

The applicant in paragraph 7 3.4 of his answering affidavit agreed with the respondents that there are two ways of appointing High Court judges. I do not understand the issues involved herein to relate to appointment of High Court judges per se but Supreme Court judges and Constitutional Court judges. The applicant as already noted averred that he did not seek to prevent the appointment of Supreme court and Constitutional Court judges “…completely for any period of time….” He seeks to prevent their appointment from an inadequate pool. The appointment of judges other than to the two courts aforesaid does not impact on this application.

The applicant having agreed with the respondents on the existence of two methods of appointment of judges to the Supreme and Constitutional Court, being the public interview method and the recommendation method then sought to prescribe how the recommendation process, that is, appointment in terms of subsection (4a) to s 180 of the Constitution must entail. He stated as follows in paragraph 7.3.5 – 7.3.5.5

“7.3.5 There is a process of direct appointment for sitting judges to the next higher Court. This is wrong. The Constitution envisages a process in appointing these judges either way. The public interview process is clearly laid out. The recommendation process involves first respondent recommending sitting judges to the second respondent for appointment. Clearly this does not happen in the air-there has to be a process done by the first respondent prior to its recommendations to the second respondent which in the least must involve-

7.3.5.1 Enquiring which eligible Judges would want to be recommended for appointment to the next higher court.

7.3.5.2. Evaluating the qualifications, experience, capacity and competence of all the Judges who have expressed an intention to be elevated to the next higher Court.

7.3.5.3 Conferring with stakeholders-including the legal profession- on the suitability or otherwise of each candidate for elevation to the next higher Court.

7.3.5.4 Grading the candidates for appointment by a fair and just process as required by s 191 of the Constitution of Zimbabwe.

7.3.5.5 Recommending the candidates to the second respondents.

The applicant therefore seeks to prescribe to the appointing authority how the right to appoint judges in terms of subsection (4a) of section 180 of the Constitution should be carried out. The source of the prescribed steps is not pleaded. Therefore, one cannot hold that there is a need for an urgent intervention by the court to require it to prescribe how the appointing authority must implement the provisions of subsection (4a) in the absence of a measure prescribed by law which has or is likely to be violated if the prescribed process suggested by the applicant is not followed. The applicant seeks to qualify the discharge of a legislated constitutional process using prescriptive steps or processes not provided for by either the relevant constitutional provision at play or any by any other statutory provision. The court is not empowered in terms of the Constitution to prescribe how the appointing authority must carry out the process of appointment of Supreme and Constitutional Court judges using the recommendation methods. If the court were to do so, the exercise and decision thereon would be unlawful. The court can only at best review a process which has been carried out by the appointing authority on review where grounds for such review are advanced. This application does not do so. That the court should make recommendations suggested by the applicant is incompetent for reasons I have given.

Related to the issue of the incompetence as aforesaid is the interim relief sought that the respondents be ordered not to proceed with the appointment of substantive Judges to the Supreme Court and Constitutional Courts, “without following the process in s 180(4) of the Constitution to allow for all persons who are not judges to be considered for appointment to such positions”. At the time that this application was filed, no appointment of Supreme Court judges had been done and there were no proven or probable factual allegations made to hold that there would be appointments done outside of the provisions of s 180 (4) and (4a) of the Constitution even on a prima facie basis is. The applicant’s apprehensions were therefore not based upon any prima facie evidence from which the court could appreciate the basis for the relief sought. I was accordingly not satisfied that there was any proven conduct by the respondents actual or apprehended which was unlawful. In my view the objection that it was incompetent to interdict lawful conduct was well taken. See Judicial Service Commission v Zibani and Ors 2017 (2) ZLR 114 (S) where the point is made that “a court of law has no power to interdict a constitutional body from performing a constitutional obligation.” It was also held that it was not “within the ambit of the power or authority of a court to override or purport to suspend or limit the operation of an unambiguous provision of the under the pretext of pending executive action. Further it was also held that, “…the constitution cannot under any circumstance be abrogated, superseded or suspended by intended executive action relating to the prospective amendment of its provisions.”

The case of Zibani was factually different somewhat from the court application in that the applicant Zibani sought an interdict to stop the Judicial Service Commission which had acted in terms of s 180 of the Constitution to conduct interviews for purposes of appointment of judges from holding the interviews on the basis that the Government was in the process of initiating an amendment to the Constitution such amendment whose effect if passed would have entailed a change to the interviewing process as set out in the Constitution. In casu, the applicant seeks an interdict to stop a constitutionally legislated process unless the appointing authority proceeds in terms of a formula suggested by the applicant that the appointing authority must consider for appointment in the process persons who are not sitting judges. As I have pointed out, I have not read anywhere in the provisions of subs (4a) of the Constitution where the President in the exercise of his discretion to appoint a sitting judge of the Supreme Court, High Court, Labour Court or Administrative Court to the next higher court following recommendations by the Judicial Service Commission, is required to consider other persons who are not sitting judges. It appears to me that such appointment in terms of subs (4a) is in the nature of a promotion and it is incongruous to promote a person who is not already within the establishment in which the promotion is made. Whether such provision is good law or is constitutionally valid would have to be decided upon a challenge to the validity of the provision itself. The provisions of subs (4a) are unambiguous and as stated in the Zibani case, the court would have no power to stop anything done in terms of an unambiguous provision of the Constitution. In the context of the current application I would state that no court of law would have power to prescribe how the appointing authority should exercise its functions in terms of the unambiguous provisions of the constitution in the absence of a reference in the constitution or other law on how the power must be exercised and the applicant establishing on a prima facie basis a reasonable apprehension of a constitutional violation about to be committed or been committed.

The provisional order therefore requires the court to interfere with the performance by the respondent of a constitutional permissive power. It is an order which the court cannot lawfully grant. In terms of r 246(2)-

“(2)	Where in an application for a provisional order the judge is satisfied that the papers established a prima facie case he shall grant a provisional order either in terms of the draft filed or as varied.”

The above rule obligates the judge to grant the applicant the provisional order as sought or as varied if the papers establish a prima facie. The objection that it is incompetent to interdict a constitutional process if established would of necessity mean that no prima facie case can arise out of an unlawful prayer. It must be appreciated here that the nature of a point in limine such as that there is really no cause of action as where the interdiction of a lawful process is sought necessarily involves the consideration of the merits of the application. This cannot be avoided although the court must avoid then giving a judgment based on the merits. Although the judge is given a discretion to grant a varied order, this power can only be exercised where a prima facie case has been established. In casu, the prima facie case has not been established because the relief sought is incompetent. This finding must resolve the application including the issue of urgency because urgency is considered against the backdrop that a competent application relief wise has been placed before the judge.

The only other issue which in view of the finding I made merits mention is the objection that the applicant had no locus standi to bring the application. Ordinarily this objection is ventilated first because in the absence of locus standi on the part of the applicant, the court has no party before it and therefore no application to consider. That in my view is one way of looking at it. The other way to consider the issue in my view is to consider firstly whether there is in fact a valid actio causa before the court. If the papers do not disclose a legally supportable cause of action or as in this case, the relief sought cannot lawfully be granted, then it does not matter whether locus standi is present or not. In other words, the judge before whom the urgent application is placed, will consider what the matter is about and what relief is sought. If the relief sought is legally incompetent, the matter is resolved on that basis because a court does not grant unlawful orders.

Therefore, having found that the provisional order sought by the applicant is legally incompetent in that the court cannot prescribe how a constitutional function reposed in a constitutional body should be exercised by that body unless there exists within the constitution or other legislation a reference on how the function must be exercised, the locus standi of the applicant becomes inconsequential. If a party petitions the court praying for a legally incompetent order, the court will not bother about the legal standing of any of the parties to the invalid lis. In casu, I consider that the applicant acted precipitately in filing the application because it was legally incompetent to order how the respondents were supposed to carry out their function. The court would have a right to review the actions done after the event. The applicant stated that he was acting in his own interest. He stated that his interest arose from his desire that correct procedures be followed to ensure that only the best and meritorious judges are appointed to the Supreme Court and Constitutional Court because the applicant was a litigant who would have his cases decided in those courts. I did ask counsel to submit written supplementary heads of argument on whether locus standi should be decided on a prima facie basis or on a balance of probabilities. I am grateful to counsel for the heads of argument which they filed. I benefited a lot from their erudite minds. I do not unfortunately consider it necessary under the circumstances and the approach I have adopted to answer the issue of degree of proof needed. I have answered the issue by stating that where the application itself seeks incompetent relief that is the end of the matter. It does not matter whether the person who filed the incompetent application has legal status or power to petition the court.

The other matter requiring comment is the fact that the judges were appointed anyway. Therefore, what was intended to be achieved by this application was overtaken by events. The applicant averred that he still persisted with the application because the respondents could still make further appointments in terms of the invocation of a process which the applicant impugned. However, in view of the finding I made that the applicant sought incompetent relief, the appointments made would have to be considered so far as they impact on this application, on the findings I have made on the incompetence of the relief sought.

The last issue related to costs. Costs in constitutional litigation are normally not ordered against a party. Ordinarily, persons must not be penalized for seeking constitutional relief by costs orders against losers. I have taken note that the applicant albeit unadvisedly filed a precipitately thought out application, the issue addressed is of public interest and since in terms of the provisions of s 162 of the constitution, judicial authority derives from the people of Zimbabwe who vests the authority in the courts, the court should be receptive to issues raised by the citizenry on the constitution and functions of the courts. I am inclined to and will not make a costs order.

DISPOSITION

The application is disposed of as follows:

1.	The urgent application for a provisional order be and is hereby dismissed with no order of costs.

Zimbabwe Human Rights Forum, applicant’s legal practitioners

Kantor and Immerman, 1st respondent’s legal practitioners

Attorney General’s Office, 2nd & 3rd respondents’ legal practitioners