Martin Dinha v The State

The applicant/accused faced criminal trial before the High Court. On 3 November 2015, the court in judgment HH 867-15 dismissed his application for postponement of the trial. The applicant had sought the postponement to obtain certain documents protected by the Official Secrets Act [Chapter 11:09], which he contended he could not use in his defence until declassified. The court set the trial for 23 November 2015. On 17 November 2015, the applicant filed an application in terms of s 175(4) of the Constitution seeking referral to the Constitutional Court of the issue concerning the effect on his right to a fair trial of the judgment refusing postponement. The State opposed the application, arguing that the applicant had done little to secure declassification of the documents and that his request was merely frivolous or vexatious.

• Whether the request for referral to the Constitutional Court under s 175(4) of the Constitution was frivolous or vexatious
• Whether the High Court's refusal to postpone the trial (HH 867-15) to enable the applicant to seek declassification of documents violated the applicant's right to a fair trial under s 69(1) of the Constitution
• Whether the applicant's tardiness in seeking declassification affected the genuineness of his constitutional request
• The proper interpretation of s 175(4) of the Constitution regarding mandatory referrals to the Constitutional Court

The relief sought was granted. The court referred two questions to the Constitutional Court: (1) Whether the High Court judgment HH 867-15 refusing to postpone the trial to enable the applicant to seek declassification of certain state documents violated the applicant's right to a fair trial under s 69(1) of the Constitution; and (2) Whether, if the applicant's rights under s 69(1) have been or would be violated, the trial proceedings should be stayed pending proceedings to have the documents declassified.

A request for referral to the Constitutional Court under s 175(4) of the Constitution must be granted unless it is frivolous or vexatious. A request is only frivolous or vexatious if it is manifestly lacking in seriousness, clearly groundless, devoid of merit, or constitutes an abuse of process. An applicant's tardiness in pursuing underlying remedies does not automatically render a request for constitutional referral frivolous or vexatious - the genuineness and bona fides of the constitutional question must be assessed separately. The comprehensive bill of rights in the Constitution requires generous interpretation giving full effect to fundamental rights, including the right of every person to have constitutional matters determined by the Constitutional Court.

The court observed that the applicant's tardiness in seeking to enforce his rights regarding declassification of documents was a valid concern raised by the State, but this was a separate matter from the genuineness of his constitutional request. The court also noted that the normative value system underpinning the Constitution calls for a generous interpretation of constitutional provisions in a manner that gives full effect to fundamental rights. The court emphasized that it is the right of every person to have their rights determined by the highest court in constitutional matters in the jurisdiction.

This case is significant in Zimbabwean constitutional law as it clarifies the test for when a court must refer constitutional matters to the Constitutional Court under s 175(4) of the Constitution. It establishes that courts must adopt a generous interpretation favoring referrals and should only refuse where requests are manifestly frivolous or vexatious. The judgment emphasizes the importance of access to the Constitutional Court for determination of constitutional rights, particularly the right to fair trial. It also distinguishes between an applicant's procedural delays in pursuing remedies and the substantive merit of constitutional questions raised, holding that tardiness does not necessarily render a constitutional referral request frivolous or vexatious.