Lindiwe Ndlovu v Esquire Manwere T N.O and The State

The applicant was arrested on 31 March 2022 and charged with deliberate transmission of HIV under section 79 of the Criminal Law (Codification and Reform) Act. On 27 May 2022, the Marriages Act came into operation, which repealed section 79 of the Criminal Law Act. On 2 August 2022, the applicant applied to the magistrates' court for the quashing of charges on the basis that under section 70(1)(l) of the Constitution, he could not be convicted of an act that was no longer an offence. On 18 November 2022, the magistrates' court dismissed this application, holding that section 17 of the Interpretation Act permitted continued prosecution despite the repeal. On 9 February 2023, the applicant lodged an application under section 175(4) of the Constitution for referral of constitutional questions to the Constitutional Court regarding the validity of section 17(1)(d) and (e) of the Interpretation Act and whether his continued prosecution violated section 70(1)(l) of the Constitution. The magistrates' court dismissed the referral application, finding it fatally defective for want of viva voce evidence and frivolous and vexatious. The applicant sought review of this decision.

• Whether the magistrates' court misdirected itself in holding that the application for referral to the Constitutional Court was fatally defective for want of viva voce evidence
• Whether, having found the application fatally defective, the magistrates' court was entitled to proceed to determine the merits and characterise it as frivolous and vexatious
• Whether the magistrates' court exceeded its jurisdiction by determining constitutional questions which it was only empowered to refer to the Constitutional Court under section 175 of the Constitution
• Whether the decision to refuse the referral was grossly unreasonable and irregular as to warrant interference on review
• Whether the application for referral was properly characterised as frivolous and vexatious

1. Application for review is granted. 2. The first Respondent's decision is set aside. 3. No order as to costs.

1. An application for referral to the Constitutional Court founded purely on a point of law does not require viva voce evidence where the material facts are common cause - evidence is required to establish facts, not law. 2. A finding that an application is fatally defective terminates the proceedings and renders the court functus officio; it is legally untenable and internally contradictory to find an application fatally defective yet proceed to determine its merits. 3. Under section 175(4) of the Constitution, subordinate courts are empowered only to determine whether a constitutional question is frivolous or vexatious and to refer it to the Constitutional Court; they are not authorized to determine constitutional matters on the merits or to pronounce on the constitutional validity of legislation. Subordinate courts function as gatekeepers, not decision-makers in constitutional matters. 4. A constitutional question is not frivolous or vexatious where it arises directly from the court's own ruling, concerns core constitutional protections (such as protection against retrospective criminal liability under section 70(1)(l)), and requires extended constitutional analysis to address.

The court's reference to subordinate courts being "gatekeepers, not decision-makers" in constitutional matters provides guidance on the proper constitutional role of lower courts. The judgment also observes that when a trial court must embark upon extended constitutional analysis to dismiss an application, this itself is inconsistent with a finding that the matter is hopeless or devoid of merit. The court's discussion of the substantive constitutional question regarding the interaction between section 17 of the Interpretation Act and section 70(1)(l) of the Constitution, while not deciding it, signals the seriousness and merit of the constitutional issue raised, particularly where it concerns continued prosecution under a repealed penal provision implicating fundamental criminal justice guarantees.

This case is significant in Zimbabwean constitutional law for clarifying the limited jurisdiction of subordinate courts when dealing with constitutional matters under section 175 of the Constitution. It establishes that subordinate courts function as gatekeepers who determine only whether a constitutional question is frivolous or vexatious, not as decision-makers on constitutional validity. The judgment reinforces that applications founded purely on points of law do not require viva voce evidence where material facts are common cause. It also addresses the important substantive constitutional question of whether prosecutions can continue under repealed penal provisions, implicating the constitutional protection against retrospective criminal liability under section 70(1)(l) of the Constitution. The case demonstrates the courts' vigilance in protecting the separation of constitutional functions and ensuring accused persons' constitutional rights are properly ventilated before the appropriate forum.