Mupungu v Minister of Justice, Legal and Parliamentary Affairs And 6 Others (7 of 2021) [2021] ZWCC 7 (22 September 2021)

Key Facts

Issues

• The court dismissed the recusal application, finding it procedurally and substantively flawed, and concluding no bias or conflict of interest existed.
• The court addressed the applicant's legal standing to bring the application under s 175(3) of the Constitution, determining whether citizenship alone conferred sufficient interest to challenge the High Court's constitutional invalidity orders.
• The court evaluated the procedural validity of the President's approval under s 186, including compliance with medical fitness requirements and consultation with the Judicial Service Commission.
• The court examined the validity of the High Court's orders as constitutional invalidity declarations under s 175(1), requiring confirmation by the Constitutional Court before taking effect.
• The court analyzed whether s 186's retirement age extension (70 to 75 years) constituted a term-limit amendment under s 328(7), which prohibits such extensions for sitting judges.

Holdings

• The High Court's failure to obtain leave to sue judges (per Rule 18) rendered its proceedings a nullity. However, the Constitutional Court proceeded to address the merits due to the matter's public importance.
• The applicant was found to have sufficient interest under s 175(3) of the Constitution to bring the application, despite not being a party to the original High Court proceedings.
• The Court found the High Court's judgment misdirected in its interpretation of sections 186 and 328 of the Constitution, concluding that the amendment to section 186 does not violate constitutional provisions and that the High Court's declarators were erroneous.
• The application for recusal of the Constitutional Court was dismissed. The Court held that the recusal request was procedurally and substantively flawed, lacking good faith and legal merit.
• The Constitutional Court declared that the High Court's orders (paras 1 and 2 of judgment No. HH 264-21) are orders of constitutional invalidity and have no force unless confirmed by the Constitutional Court. The Court further ordered that these orders are not confirmed and are set aside.

Remedies

• It is hereby ordered that the aforesaid orders of the High Court, being orders of constitutional invalidity, are not confirmed and are hereby set aside.
• There shall be no order as to costs.
• It is declared that paras 1 and 2 of the operative part of the High Court judgment are orders of constitutional invalidity under s 175(1) of the Constitution and have no force or effect unless confirmed by the Constitutional Court in terms of s 175(3).

Legal Principles

• The judgment emphasized the Rule of Law as a foundational constitutional principle, requiring courts to act impartially and independently. This was critical in upholding the applicant's right to challenge the High Court order and in addressing concerns about judicial tenure and executive influence.
• The court applied the principle of Substance over Form to assess the true nature of the High Court's orders. It concluded that the orders effectively declared constitutional invalidity of s 186(4) and the President's conduct, despite their formal labeling, necessitating Constitutional Court confirmation under s 175(1).
• The court applied the common law principle of nemo judex in sua causa (a judge cannot be a judge in their own case) to determine that the recusal application lacked valid grounds. This principle, rooted in Natural Justice, was central to the dismissal of the recusal request as the judges' interests were not substantiated.
• The court employed the Literal Rule to interpret s 186 and s 328 of the Constitution, distinguishing between term limits and age limits. It concluded that s 186's amendments to judicial retirement age did not constitute term-limit extensions, thereby avoiding s 328(7)'s restrictions.
• The Purposive Approach was used to interpret s 186(4) in conjunction with s 328(7). The court aimed to harmonize these provisions, ensuring they were applied to avoid inconsistencies and uphold the Constitution's integrity, particularly regarding judicial tenure.

Precedent Name

• President of the Republic of South Africa v SARFU 1999 (4) SA 147 (CC)
• Zimbabwe Teachers Association & Ors v Minister of Education 1990 (2) ZLR 48 (HC)
• Justice Alliance of South Africa v President of the Republic of South Africa & Others 2011 (5) SA 388 (CC)
• Konson v S 7/15
• S v Rall 1982 (1) SA 828
• Ferreira v Levin N.O. & Others 1996 (1) SA 984 (CC)
• Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (SC)
• Nicolle v Minister of Lands & Anor 2003 (1) ZLR 280 (H)
• Mawarire v Mugabe N.O. & Ors 2013 (1) ZLR 469 (CC)

Cited Statute

• Constitution of Zimbabwe
• Constitutional Court Rules 2016
• Interpretation Act [Chapter 1:01]
• Constitution of Zimbabwe Amendment (No. 2) Act (No. 2 of 2021)
• High Court Rules 1971

Judge Name

• Makarau
• Gwaunza
• Guvava
• Patel
• Hlatshawayo
• Gowora
• Garwe

Passage Text

• 1. It is declared that paras 1 and 2 of the operative part of the judgment of the High Court (No. HH 264-21) are orders of constitutional invalidity within the contemplation of s 175(1) of the Constitution and have no force or effect unless confirmed by this Court in terms of s 175(3) of the Constitution.
• The court a quo misdirected itself in all three respects. Consequently, the judgment of the court and the declaratory orders made pursuant to that judgment cannot be confirmed and must therefore be set aside.
• 2. It is hereby ordered that the aforesaid orders of the High Court, being orders of constitutional invalidity, are not confirmed and are hereby set aside.