Automated Summary
Key Facts
The case involves a forensic audit of the National Social Security Authority (NSSA) conducted by BDO Zimbabwe (second respondent) at the request of the Auditor-General (first respondent). The audit, spanning 2015-2018, found irregularities including biased reporting, failure to apply minds to issues, and financial losses from transactions like a $304 million housing contract and $57 million exposure via Metbank investments. The High Court set aside the audit report as reviewable administrative action, but the Supreme Court overturned this, concluding no constitutional matter was raised. The Constitutional Court ultimately ruled the appeal was not based on a constitutional issue, striking the matter from the roll and remitting it for rehearing.
Issues
- The main issue before the Constitutional Court was whether the appeal from the Supreme Court properly raised a constitutional matter, specifically the interpretation of section 309 of the Constitution regarding the Auditor-General's authority to delegate administrative functions. The Court also considered whether the Supreme Court's decision to interpret s 309 was a procedural irregularity and if this Court had jurisdiction to review it.
- The second issue was whether the High Court and Supreme Court (court a quo) had jurisdiction to interpret s 309 of the Constitution in their judgments. The Constitutional Court found that the court a quo's reference to s 309 was unnecessary and violated principles of constitutional avoidance and subsidiarity.
- The third issue concerned the Constitutional Court's power to review the Supreme Court's judgment under section 19 of the Constitutional Court Act. The Court determined that it could set aside the Supreme Court's decision due to its irregular interpretation of s 309 and remit the case for rehearing on a non-constitutional basis.
Holdings
- The Constitutional Court determined that the appeal before the Supreme Court was not predicated on a constitutional matter and was resolvable on a non-constitutional basis. As a result, the matter was struck off the roll because no appeal could properly lie to this Court on the facts of the case.
- The Court set aside the judgment of the Supreme Court in SC 61/22 and remitted the matter for a hearing de novo before a different panel of judges, specifying that the appeal should be determined on the non-constitutional basis upon which it was originally brought.
Remedies
- There shall be no order as to costs in the matter as per the Court's decision.
- The matter is remitted to the Supreme Court for a hearing de novo before a differently-constituted bench.
- The judgment of the Supreme Court in SC 61/22 is set aside in the exercise of the Court's powers pursuant to s 19 of the Constitutional Court Act.
- The matter is struck off the roll because no appeal can properly lie to this Court on the facts of this case.
- The Court shall determine the appeal before it on the non-constitutional basis upon which it was brought.
Legal Principles
The Constitutional Court emphasized the doctrines of constitutional avoidance and subsidiarity, ruling that constitutional issues should not be decided unless absolutely necessary and that lower courts must prioritize statutory interpretation over constitutional questions when possible. The court also clarified that its jurisdiction is strictly limited to constitutional matters and that the Supreme Court erred by interpreting s 309 of the Constitution in a case resolvable under the Administrative Justice Act. The judgment reaffirmed the principle that courts must refrain from constitutional adjudication in non-constitutional proceedings to avoid procedural irregularities.
Precedent Name
- Bere v Judicial Service Commission & Ors
- Bonnyview Estate (Pvt) Ltd v Zimbabwe Platinum Mine (Pvt) Ltd & Anor
- Ismail v St John's College and Others
- The Cold Chain (Pvt) Ltd T/A Sea Harvest v Makoni
- Michael Nyika & Anor v Minister of Home Affairs & Others
- Zinyemba v Ministry of Lands
- Gonese v Minister of Finance and Economic Development
Cited Statute
- High Court Act
- Administrative Justice Act
- Audit Office Act
- Constitution of Zimbabwe 2013
- Constitutional Court Act [Chapter 7:22]
Judge Name
- Hlatshwayo
- Patel
- Gwaunza
- Malaba
- Garwe
- Gowora
- Makarau
Passage Text
- [80] Everything considered, therefore, the appeal before the Supreme Court was not predicated on a constitutional matter. It was resolvable on a non-constitutional basis. The question whether the Auditor-General had the power in terms of s 309 of the Constitution to delegate administrative authority to the second respondent, having arisen in submissions made by the applicant before the court, should have been referred to this Court and not determined by the court itself. In the circumstances, the matter stands to be struck off the roll as no appeal can properly lie to this Court on the facts of this case.
- [63] The doctrine of avoidance also encompasses the doctrines of ripeness and subsidiarity. In the present matter, it was unnecessary on the part of the Court a quo to resort to s 309 of the Constitution as the matter was clearly resolvable on the basis of the Administrative Justice Act. In the circumstances, the determination by the Court a quo fell foul of these principles.
- [56] The court a quo concluded that s 2(1) of AJA excluded private entities from the definition of an administrative authority. Relying also on s 309 of the Constitution of Zimbabwe, 2013, the court a quo further determined that the first respondent could not have conferred administrative authority on the second respondent as this was constitutionally impermissible.