David Israel Ben Jesse v The Attorney-General

The applicant was charged in the Regional Court, Eastern Division, with three offences: (i) kidnapping; (ii) contravention of s 7(1) of the Children's Protection and Adoption Act (ill-treatment or neglect of children); and (iii) contravention of s 4(4)(a) of the Firearms Act (possession of ammunition without a firearms certificate). He pleaded not guilty to all counts. On 19 March 1998, after the prosecution case closed but before the trial concluded, the applicant lodged an application directly with the Supreme Court under s 24(1) of the Constitution of Zimbabwe, alleging that s 7(1) of the Children's Protection and Adoption Act and s 4(4)(a) of the Firearms Act violated the presumption of innocence guaranteed by s 18(3)(a) of the Declaration of Rights in the Constitution. The applicant had not requested the regional magistrate to refer the constitutional questions to the Supreme Court under s 24(2) of the Constitution before making his direct application.

• Whether an applicant may apply directly to the Supreme Court under s 24(1) of the Constitution during ongoing criminal proceedings without first requesting the trial court to refer the constitutional question under s 24(2)
• Whether the provisions of s 7(1) of the Children's Protection and Adoption Act and s 4(4)(a) of the Firearms Act violate the presumption of innocence (this issue was not decided on merits)
• The proper approach to costs where a procedural defect is raised by the court itself

The application was dismissed with costs, without prejudice to the applicant's right to raise the constitutional questions on any appeal from the determination of the regional magistrate in the current criminal proceedings.

Where criminal proceedings are ongoing in the High Court or any court subordinate to it, an accused person alleging a constitutional violation must first request that court to refer the constitutional question to the Supreme Court under s 24(2) of the Constitution. An accused cannot bypass this referral procedure and apply directly to the Supreme Court under s 24(1) while proceedings are ongoing. Section 24(3) expressly prohibits such direct applications where a referral under s 24(2) has not been sought, without prejudice to the right to raise constitutional questions on appeal after determination of the proceedings. It is the responsibility of the party seeking relief to ensure that the matter is properly before the court; failure to comply with mandatory procedural requirements will result in dismissal with costs, even where the procedural defect is raised by the court itself.

The Court noted that the applicant, though not a qualified legal practitioner, was not without knowledge of the law, as evidenced by his frequent self-representation in litigation across all courts over preceding years. This observation informed the Court's decision not to relax the usual costs rule in his favour. The Court also noted that the respondent's counsel had failed to oppose the application on the ground of procedural defect and had declined the Court's suggestion to consent to each party bearing its own costs, but this did not affect the application of the usual costs principle from Jesse v Chioza.

This case is significant in Zimbabwean constitutional procedure (and relevant to South African law by comparative analogy) as it clarifies the mandatory procedural requirements for bringing constitutional challenges during ongoing criminal proceedings. It establishes that litigants cannot bypass the referral procedure in s 24(2) and apply directly to the Supreme Court under s 24(1) while proceedings are ongoing in a lower court. The case reinforces the hierarchical structure of constitutional litigation and the importance of following prescribed procedural routes. It also demonstrates the application of the principle that parties seeking relief must ensure their matter is properly before the court, with costs consequences for procedural failures even when raised by the court mero motu. The judgment is relevant to South African jurisprudence on constitutional procedure, particularly regarding the proper forum and timing for raising constitutional challenges in criminal proceedings.