Michael Nyika and Crispen Tobaiwa v Minister of Home Affairs and Others

On 19 July 2014, the applicants, members of the Zimbabwe National Army in uniform, were passengers in a vehicle travelling to Karoi. The vehicle became lost near Ashire Mine. Upon making a u-turn, they were stopped by seven police officers armed with FN rifles who ordered them to disembark with hands up. Despite compliance, the officers fired at them, believing them to be armed robbers. The applicants suffered serious injuries. On 9 June 2015, approximately eleven months after the incident, the applicants initiated legal proceedings seeking damages for bodily injuries. The respondents raised a special plea of prescription based on section 70 of the Police Act which requires action to be brought within eight months. The applicants did not file a replication to the special plea. Subsequently, in supplementary heads of argument, the applicants challenged the constitutionality of section 70, arguing it violated sections 56(1) and 69(2) of the Constitution. The matter had previously been before the Constitutional Court in CCZ 5-20 where it was struck off with costs. Despite this, the same matter was again enrolled before the High Court which referred it to the Constitutional Court purportedly mero motu at the suggestion of the parties.

• Whether the referral from the High Court to the Constitutional Court was properly made in terms of section 175(4) of the Constitution and Rule 24 (now Rule 29) of the Constitutional Court Rules
• Whether the procedural requirements for referral were complied with, including determination of facts, statement of agreed facts, and formulation of the constitutional question
• Whether the eight-month prescription period in section 70 of the Police Act is unconstitutional as violating sections 56(1) and 69(2) of the Constitution (not determined due to procedural defects)
• Whether costs should be awarded in constitutional matters where there has been abuse of process

The matter was struck off the roll. The applicants were ordered to pay the respondents' costs on the ordinary scale.

A referral to the Constitutional Court under section 175(4) of the Constitution must comply with prescribed procedures set out in the Constitution and the Constitutional Court Rules (Rule 24, now Rule 29). A referral is defective and incapable of triggering the Constitutional Court's jurisdiction where: (1) it is unclear whether the referral is made mero motu or at the request of a party; (2) no formal request is made where a party seeks referral; (3) the referring court fails to make findings of fact or the parties fail to prepare a statement of agreed facts; (4) the referring court fails to formulate the constitutional question for determination; (5) the court fails to determine whether the request is frivolous or vexatious; and (6) no real dispute has crystallized on the pleadings (such as where no replication is filed to a special plea). Constitutional questions do not arise in a vacuum but must arise from the facts of a particular matter, and factual findings are crucial in determining whether a request for referral is frivolous or vexatious. A referral that fails to comply with these requirements is a nullity, and the Constitutional Court has no jurisdiction to entertain it.

The Court made several important observations: (1) It noted that the absence of a replication to a special plea means there are no disputes for determination and the plea stands unchallenged; (2) The Court emphasized that constitutional validity should not be determined in a factual or procedural vacuum and jurisdiction is triggered only where a real, earnest and vital dispute arises; (3) The Court observed that raising constitutionality in supplementary heads of argument filed months later is "clearly an afterthought which did not cure the failure to replicate"; (4) The Court stated that while it is rare to grant costs in constitutional matters, awards may be warranted where conduct demonstrates negligence and disregard for the Court's previous guidance; (5) The Court noted that on the facts, costs on a higher scale or even de bonis propriis may have been warranted but for the respondents not seeking such relief; (6) The Court emphasized that legal practitioners ought to be candid with courts and disclose relevant previous judgments; (7) The Court stated that the procedure under section 175(4) "is one that should be taken seriously" and expressed its displeasure at casual requests for referral that do not comply with legal requirements.

This case is significant for establishing and reinforcing strict procedural requirements for referrals to the Constitutional Court under section 175(4) of the Constitution. It clarifies that: (1) there must be a clear indication whether a referral is made mero motu or at the request of a party - both procedures cannot be adopted simultaneously; (2) where referred at a party's request, a formal request (oral or written) must be made; (3) the referring court must make findings of fact or the parties must prepare a statement of agreed facts before referral; (4) the referring court must clearly formulate the constitutional question for determination; (5) the court must determine whether the request is frivolous or vexatious with reference to the materiality of the constitutional issue to the case at hand; (6) a constitutional issue must arise from properly pleaded disputes, not as an afterthought in supplementary submissions; (7) failure to replicate to a special plea means no dispute exists for determination. The case also demonstrates the Court's willingness to award costs in constitutional matters where there has been persistent abuse of process and disregard for previous judicial guidance, even where respondents do not seek costs. It serves as a warning to legal practitioners about the consequences of repeatedly failing to follow proper constitutional procedures.