David Edward Gardner v The State

In 2008, the applicant was convicted by the Magistrates' Court on three counts of contravening the Sexual Offences Act [Chapter 9.21], having committed immoral or indecent acts against three young persons. He was sentenced to 24 months' imprisonment, with 12 months suspended. The applicant appealed to the High Court against conviction and sentence. The High Court dismissed the appeal against conviction but substituted the sentence with community service. The applicant then appealed to the Supreme Court, continuing to challenge both conviction and sentence. During the first hearing before the Supreme Court in June 2023, the applicant was permitted to amend his grounds of appeal to include allegations that his fair trial rights under s 69 of the Constitution had been violated due to prosecutorial misconduct—specifically, that the prosecutor allowed complainants to refresh their memories collectively before trial. The Supreme Court dismissed the appeal. The applicant then sought leave to appeal to the Constitutional Court, which set aside the Supreme Court judgment and remitted the matter for a fresh hearing, noting that s 175(4) of the Constitution had not been observed. Upon remittal, the Supreme Court reverted to the unamended grounds of appeal, rejected a fresh application to amend, and dismissed the appeal. The applicant then filed this application for leave to appeal to the Constitutional Court.

• Whether there was a constitutional matter properly before the Supreme Court for determination on appeal to the Constitutional Court
• Whether the Supreme Court erred in refusing to consider the amended grounds of appeal after remittal
• Whether the Supreme Court's refusal to interrogate alleged prosecutorial misconduct violated the applicant's constitutional rights
• Whether the applicant has prospects of success on the intended appeal
• Whether allegations of prosecutorial misconduct can be raised by way of amendment to grounds of appeal rather than through the procedure in s 175(4) of the Constitution

The application for leave to appeal was dismissed. Each party was ordered to bear its own costs.

Constitutional matters arising during the determination of non-constitutional disputes in lower courts can only be properly determined if raised through the procedure in s 175(4) of the Constitution. This procedure is not mere formality but contains essential safeguards: it requires the lower court to determine whether the constitutional question is frivolous or vexatious and whether it is relevant and necessary for the non-constitutional dispute; it requires factual disputes to be settled by the lower court before referring constitutional questions to the Constitutional Court. An allegation that a criminal trial violated fair trial rights due to prosecutorial misconduct is not a ground of appeal against conviction or sentence, but a fresh allegation collaterally challenging the legitimacy of the entire trial. Such matters cannot be raised simply by amending grounds of appeal. Assessing conduct against an accepted legal standard is not a constitutional matter for determination by the Constitutional Court. A lower court cannot self-review its own interlocutory orders; such orders remain binding unless set aside on appeal or review.

The Court observed that the Constitutional Court's earlier gesture in drawing the Supreme Court's attention to s 175(4) of the Constitution, though well-intentioned, was unfortunately misunderstood by the applicant as a directive to initiate s 175(4) proceedings and by the Supreme Court as unwelcome overreaching. The Court suggested that in hindsight, perhaps this guidance should not have been given. The Court also commented that the conflation of grounds of appeal with fresh allegations of constitutional violations in the applicant's pleadings was inelegant and not properly drafted, though the Court decided to address the matter on the merits in the interests of finality given the lengthy litigation history. The judgment emphasizes that while the Court generally frowns upon conflation of causes of action (citing Law Society of Zimbabwe v Parliament of Zimbabwe CCZ10/23), it exercised discretion to proceed on the merits rather than strike the matter off the roll.

This case clarifies important principles regarding constitutional litigation procedure in Zimbabwe: (1) It confirms that constitutional matters arising during non-constitutional proceedings before lower courts must be raised through the specific procedure in s 175(4) of the Constitution, not by amending grounds of appeal; (2) It establishes that the s 175(4) procedure contains essential safeguards including requiring the lower court to settle factual disputes and determine whether the constitutional question is relevant and necessary; (3) It reinforces that assessing conduct against an accepted legal standard is not a constitutional matter for the Constitutional Court; (4) It demonstrates that lower courts cannot self-review their own interlocutory orders; (5) It emphasizes the distinction between grounds of appeal and fresh allegations of constitutional violations; (6) It shows that despite procedural errors by a lower court, an applicant must still demonstrate proper procedure was followed to have prospects of success on appeal. The judgment protects the Constitutional Court's jurisdiction from being used to circumvent proper procedures for raising constitutional matters.