Marx Mupungu v Minister of Justice, Legal and Parliamentary Affairs & 6 Others

On 7 May 2021, the Constitution of Zimbabwe Amendment (No. 2) Act came into force, amending section 186 of the Constitution to allow the Chief Justice, Deputy Chief Justice, and judges of the Constitutional Court and Supreme Court to elect to continue in office for an additional five years after reaching the age of 70, subject to submission and acceptance of a medical report by the President after consultation with the Judicial Service Commission. Chief Justice Malaba reached age 70 on 15 May 2021. On 11 May 2021, he exercised the option to extend his tenure and the President accepted his medical report confirming fitness to continue. The third, fourth and fifth respondents filed two urgent applications in the High Court challenging the continuation in office, arguing that section 186 as amended did not apply to sitting judges under section 328(7) of the Constitution (which precludes term-limit extension amendments from applying to incumbents). The High Court granted a declaratory order on 15 May 2021 stating that the Chief Justice ceased to hold office and that the extension provisions did not apply to sitting judges. The applicant, a citizen, filed an application directly to the Constitutional Court under section 175(3), seeking to set aside the High Court order on the basis that it constituted an order of constitutional invalidity requiring confirmation.

• Whether the applicant had locus standi to bring an application under section 175(3) of the Constitution as a person with sufficient interest
• Whether the failure to obtain leave to sue judges under Rule 18 of the High Court Rules rendered the proceedings a quo a nullity
• Whether the High Court orders constituted orders of constitutional invalidity requiring confirmation by the Constitutional Court under section 175(1)
• Whether the entire bench of the Constitutional Court should recuse itself on grounds that judges were cited as respondents in the High Court proceedings
• Whether section 186 of the Constitution as amended constituted a 'term-limit provision' within the meaning of section 328(7)
• Whether the extension of the retirement age from 70 to 75 years violated the right to equal protection of the law (section 56(1)) and the right of access to independent courts (section 69(3))

1. It is declared that paragraphs 1 and 2 of the operative part of the judgment of the High Court (No. HH 264-21) are orders of constitutional invalidity within the contemplation of section 175(1) of the Constitution and have no force or effect unless confirmed by this Court in terms of section 175(3) of the Constitution. 2. The aforesaid orders of the High Court, being orders of constitutional invalidity, are not confirmed and are hereby set aside. 3. There shall be no order as to costs.

1. Under section 175(3) of the Constitution, "any person with a sufficient interest" includes concerned citizens who are motivated by the desire to vindicate constitutional provisions, even if they were not parties to the proceedings in the lower court; the test for locus standi in constitutional cases is significantly broader than the common law requirement of direct and substantial interest. 2. Rule 18 of the High Court Rules, requiring leave to sue judges, applies to all forms of civil process including applications, not merely actions by summons; failure to obtain such leave renders proceedings a nullity for want of jurisdiction. 3. Orders of constitutional invalidity are determined by their substance and effect, not their form; where a court order effectively invalidates the conduct of the President or Parliament or renders a constitutional provision ineffective, it constitutes an order of constitutional invalidity requiring confirmation under section 175(1). 4. A "term-limit provision" under section 328(7) refers to provisions that limit a specific and determinate length of time for holding office; age limits, being variable criteria depending on the incumbent's age upon appointment, do not constitute term-limit provisions. Consequently, amendments to retirement age do not fall within section 328(7)'s restriction on applying term-limit extensions to incumbents. 5. Section 186(4), through its non obstante clause, clarifies that subsections (1), (2) and (3) do not constitute amendments to term-limit provisions and therefore apply to incumbent judges, without conflicting with section 328(7).

1. The Court observed that the citation of judges in the High Court was not only procedurally improper but appeared to be a deliberate strategy to place the Constitutional Court in an embarrassing position and was nothing less than gratuitous vexation. 2. The Court noted that although the doctrine of necessity (an exception to nemo judex in sua causa) might have been applicable had the recusal application been validly taken, it was unnecessary to elaborate on this doctrine given the finding that the recusal application lacked merit. 3. The Court expressed the view that allowing experienced and seasoned judges to remain in office for a longer period should, all things being equal, serve to enhance rather than diminish the delivery of independent and impartial justice. 4. The Court distinguished the South African Constitutional Court decision in Justice Alliance of South Africa v President of the Republic of South Africa, noting that the issue in that case (unconstitutional singling out of the Chief Justice for extension at the President's initiative) was markedly different from the issue before it, and criticizing the High Court for selectively decontextualizing passages from that judgment. 5. The Court observed that in confirmation proceedings under section 175(3), it is not confined to procedural or preliminary issues but is duty-bound to adjudicate all relevant issues including the substantive correctness of lower court findings, and that the Court's supervisory jurisdiction should not be limited by the pendency of appeals in other courts.

This landmark judgment is of profound significance in Zimbabwean constitutional jurisprudence for several reasons: (1) It establishes a broad approach to locus standi under section 175(3), affirming that concerned citizens have sufficient interest to challenge orders of constitutional invalidity even if not parties to the original proceedings; (2) It clarifies the mandatory nature of confirmation proceedings under section 175(1) and the Constitutional Court's exclusive and overarching supervisory jurisdiction over orders of constitutional invalidity; (3) It draws a critical distinction between age limits and term limits in the interpretation of section 328(7), establishing that amendments to retirement age do not constitute amendments to term-limit provisions; (4) It affirms that Rule 18 of the High Court Rules applies to all forms of civil process (including applications) and to all superior court judges, and that failure to obtain leave to sue renders proceedings a nullity; (5) It demonstrates the Court's willingness to proceed to the merits despite procedural nullity where matters are of paramount public importance; (6) It protects judicial tenure and independence by upholding the constitutional amendments allowing senior judges to extend service beyond age 70; (7) It establishes that orders need not be explicitly framed as declarations of constitutional invalidity—their substance and effect determine their true nature.