Loverage Makoto v T.K. Mahwe N.O. and The Prosecutor General

The applicant was employed by Zimbabwe Consolidated Diamond Company (ZCDC) as an Acting Supervisor. In December 2018, he was charged in the magistrate's court with contravening s 8(1)(a), read with s 8(6), of the Money Laundering and Proceeds of Crime Act. It was alleged that between July 2018 and December 2018, the applicant stole diamonds, sold them to unknown dealers, and deposited the proceeds (totaling $34,246.00) into his Ecocash account. In May 2019, the applicant raised questions about the constitutionality of s 8(6) of the Act, requesting the trial magistrate to refer the questions to the Constitutional Court under s 175(4) of the Constitution. He contended that s 8(6) did not define "some kind of criminal activity" and relieved the State of its burden of proof, thereby infringing his fundamental rights. The trial magistrate refused the request, finding it frivolous and vexatious, and meant to delay proceedings. The applicant then applied for direct access to the Constitutional Court.

• Whether it was in the interests of justice to grant the applicant leave for direct access to the Constitutional Court
• Whether the trial magistrate's refusal to refer constitutional questions to the Constitutional Court violated the applicant's right to equal protection of the law under s 56(1) of the Constitution
• Whether s 8(6) of the Money Laundering and Proceeds of Crime Act infringes the applicant's fundamental rights to equal protection of the law, personal liberty, fair trial, and presumption of innocence under ss 56(1), 49(1), 69(1) and 70(1)(a) of the Constitution
• Whether the trial magistrate properly applied s 175(4) of the Constitution in determining that the request for referral was frivolous or vexatious
• Whether the determination of the constitutionality of s 8(6) was necessary for the disposal of proceedings in the magistrate's court

The application for leave for direct access to the Constitutional Court was dismissed with no order as to costs.

1. Direct access to the Constitutional Court under s 85(1) of the Constitution is granted only in exceptional cases where compelling reasons are shown and where it is in the interests of justice. 2. Under s 175(4) of the Constitution, a presiding officer may refuse to refer a constitutional matter to the Constitutional Court if the request is frivolous or vexatious, meaning it lacks seriousness, is manifestly insufficient, obviously unsustainable, manifestly groundless, or without foundation in the facts. 3. A refusal to refer based on an opinion formed in accordance with the procedural and substantive requirements of s 175(4) constitutes a permissible denial of access to the Constitutional Court and does not violate the right to equal protection of the law. 4. Constitutional questions must be predicated on facts and not raised in the abstract or prematurely before the facts giving rise to the constitutional issue have materialized. 5. For the Constitutional Court to determine a constitutional question under s 85(1), a party must show they have an interest to protect and that the interest has been, is being, or is likely to be violated. 6. Courts will not consider constitutional questions where other remedies (factual or legal) are available unless the existence of the remedy depends on the constitutional determination. 7. The Constitutional Court will not provide advisory opinions on constitutional questions that are not necessary for the disposal of proceedings in lower courts.

The Court observed that the appeal procedure is generally available only at the conclusion of trial, as appellate courts should be slow to intervene in ongoing proceedings. The Court noted that the applicant would have been in a stronger position had he been arguing his case after being convicted without direct evidence to prove the unlawful activity, or after the State secured a conviction following resort to s 8(6) of the Act. The Court emphasized the importance of guarding against abuse of the Court's process through adjudication of matters that ought not to have passed the frivolity or vexatiousness test, stating that the Court must protect its integrity and ensure it only adjudicates matters it is constitutionally mandated to hear. The Court commented that it would be absurd to pronounce on the constitutionality of s 8(6) and then state that in the circumstances the finding is unnecessary, as this would render the determination a mere academic opinion.

This case is significant in Zimbabwean constitutional jurisprudence as it clarifies the requirements for granting direct access to the Constitutional Court and the proper application of s 175(4) of the Constitution regarding referrals from lower courts. It establishes that constitutional challenges must be grounded in facts rather than raised in the abstract or prematurely. The judgment reinforces that direct access is an exceptional remedy requiring compelling reasons and that courts should not provide advisory opinions on constitutional questions that are not necessary for the resolution of disputes. It also clarifies the distinction between substantive criminal charges and evidential burdens of proof in the context of money laundering legislation, and emphasizes that constitutional questions should only be determined when they are relevant to the actual proceedings and when a party's interest is genuinely being violated.