In Re Victor Gwekwerere

The applicant was a Messenger of Court stationed at Chitungwiza who was charged with murder, allegedly having unlawfully shot and killed a man at a restaurant in Mount Pleasant, Harare on 6 October 2002 at about 8.30 pm. The murder was not committed while the applicant was on duty. Before the criminal trial commenced, the Provincial Magistrate for Harare decided to institute an administrative inquiry into the applicant's conduct under sections 10(6) and (7) of the Magistrates Court Act to determine whether the applicant had conducted himself in a manner inconsistent with his duties as a Messenger of Court or was unsuitable for the post. The inquiry was to be presided over by a junior provincial magistrate. On 14 November 2002, just before the inquiry commenced, the applicant's legal practitioner objected on constitutional grounds, arguing that if the inquiry preceded the murder trial, it would prejudice the applicant's right to a fair trial under section 18(9) of the Constitution, as his evidence at the inquiry could enable prosecution witnesses to adjust their evidence before trial. The matter was then referred to the Supreme Court in terms of section 24(2) of the Constitution.

• Whether an administrative inquiry instituted by the Provincial Magistrate constitutes 'proceedings in the High Court or in any court subordinate to the High Court' for purposes of section 24(2) of the Constitution
• Whether the matter was properly referred to the Supreme Court under section 24(2) of the Constitution
• Whether the applicant's right to a fair trial under section 18(9) of the Constitution would be contravened by the administrative inquiry

The matter was struck off the roll as it was not properly before the Supreme Court.

An administrative inquiry instituted by a Provincial Magistrate under sections 10(6) and (7) of the Magistrates Court Act to determine the suitability of a Messenger of Court does not constitute 'proceedings in the High Court or in any court subordinate to the High Court' for purposes of section 24(2) of the Constitution. Such an inquiry is purely administrative in nature and has nothing to do with the courts, regardless of whether it is presided over by a magistrate or conducted in a court building. Constitutional questions arising from administrative proceedings cannot be referred to the Supreme Court under section 24(2) of the Constitution, which applies only to judicial proceedings in courts.

The court observed that although the matter was improperly referred under section 24(2), the applicant could have sought redress by making a direct application to the Supreme Court under section 24(1) of the Constitution, which permits any person who alleges that the Declaration of Rights has been, is being, or is likely to be contravened in relation to him to apply to the Supreme Court for redress. However, the court expressly declined to express an opinion on whether such an application would have been successful on the merits.

This case establishes an important distinction in Zimbabwean constitutional law between administrative proceedings and judicial proceedings for purposes of constitutional referrals. It clarifies the scope and proper application of section 24(2) of the Constitution, which permits referral of constitutional questions only from court proceedings, not from administrative inquiries. The judgment reinforces that the procedural route for challenging administrative action on constitutional grounds must be through direct application under section 24(1) rather than referral under section 24(2). This decision is significant for understanding the jurisdictional requirements for constitutional matters to come before the Supreme Court and the distinction between administrative and judicial functions, even when performed by judicial officers.