Anna Colleta Chihava and Others v The Provincial Magistrate Francis Mapfumo N.O and Another

The applicants were involved in criminal proceedings in the Magistrates Court sitting at Chivhu. During the course of these proceedings, the applicants alleged that their constitutional rights under sections 70(1)(b), 70(1)(d) and 70(1)(c) of the Constitution of Zimbabwe were violated through the manner in which the criminal proceedings were conducted. Instead of requesting the Magistrates Court to refer the constitutional issue to the Constitutional Court in terms of section 175(4) of the Constitution, the applicants took advantage of a postponement granted by consent and approached the Constitutional Court directly under section 85(1)(a) of the Constitution. They sought an order quashing the proceedings and ordering a trial de novo before a different magistrate.

• Whether applicants who allege constitutional violations during ongoing proceedings in a lower court may approach the Constitutional Court directly under section 85(1)(a) of the Constitution, or whether they must first seek referral from the lower court in terms of section 175(4)
• The proper interpretation of section 85(1)(a) and section 175(4) of the Constitution of Zimbabwe
• Whether the removal of the restrictive language contained in section 24(3) of the old Constitution (which was not replicated in the new Constitution) opened unfettered direct access to the Constitutional Court
• The application of statutory interpretation principles to constitutional provisions

1. The point in limine raised by the respondents was upheld. 2. The application was struck off the roll. 3. There was no order as to costs.

Except in exceptional circumstances (such as those in Martin v A-G & Anor where a lower court wrongly refuses to refer a constitutional matter), any constitutional issue that arises during proceedings in a lower court must be brought to the Constitutional Court only upon referral by that lower court in terms of section 175(4) of the Constitution. Section 85(1)(a) of the Constitution, which permits persons to approach 'a court' alleging violation of fundamental rights, must be interpreted consistently with section 175(4) and should not be read literally to permit litigants to abandon ongoing proceedings in lower courts and approach the Constitutional Court directly. The Legislature is presumed not to intend absurdity, and where a literal interpretation would create disorder, inconsistency with other provisions, or undermine established common law principles of judicial comity, courts must adopt a purposive interpretation that avoids such consequences. Constitutional provisions dealing with the same subject matter should be interpreted coherently, and later provisions should be read in light of earlier provisions addressing the same subject.

The Court made extensive observations on principles of statutory and constitutional interpretation, including: (1) The 'golden rule' that language should be given its grammatical and ordinary meaning unless this creates absurdity, repugnancy or inconsistency; (2) Courts are entitled to reject purely literal meanings if anomalies flowing therefrom indicate the literal meaning could not have been intended; (3) Legislative purpose may be sought from the subject matter, enacting clauses, the state of the law before the enactment, and surrounding circumstances; (4) Where earlier and later enactments deal with the same subject matter, they should be interpreted so that they cohere and the earlier provision can illuminate the later unclear provision; (5) Constitutional interpretation calls for 'a generous broad and purposive interpretation that avoids the austerity of tabulated legalism'; (6) The Constitutional Court is not able to call and hear viva voce evidence from parties and would thus be handicapped in properly determining matters that require such evidence. The Court also observed that the common law principle that superior courts should be slow to intervene in unterminated criminal proceedings in lower courts except where grave injustice might result remains applicable despite constitutional changes.

This case establishes important procedural requirements for bringing constitutional matters to the Constitutional Court of Zimbabwe. It clarifies that constitutional issues arising during ongoing proceedings in lower courts must ordinarily be referred to the Constitutional Court via the lower court in terms of section 175(4), rather than through direct application under section 85(1)(a). The judgment provides comprehensive guidance on the interpretation of constitutional provisions, emphasizing that constitutional interpretation must employ both general statutory interpretation principles and generous purposive construction appropriate to fundamental rights instruments. It demonstrates that the removal of explicit restrictive language from the old Constitution does not necessarily create unfettered rights where such interpretation would produce absurdity or undermine orderly administration of justice. The case preserves the common law principle of judicial comity and non-interference with ongoing proceedings in lower courts. It ensures that the Constitutional Court is protected from frivolous or vexatious matters through the filtering mechanism of lower court referrals. The judgment is significant for establishing procedural certainty in constitutional litigation in Zimbabwe.