On 17 April 2017, the applicant was vending along Chinhoyi Street with her one-year-old son when a commuter omnibus veered off the road and struck her. The applicant was injured and knocked unconscious, while her son was instantly crushed to death. The omnibus was driving at high speed against one-way traffic to evade police officers who were enforcing traffic regulations. The vehicle was insured by the third respondent (Champions Insurance) under third-party insurance cover. On 9 April 2018, almost a year later, the applicant instituted proceedings seeking damages of USD 510,000 for her injuries and the loss of her son. She was met with a plea of prescription by the fourth and fifth respondents (Police authorities) under section 70 of the Police Act (8-month prescription period) and a tender of ZWL$2000 by the third respondent based on the statutory limit under section 23(3) of the Road Traffic Act.
1. The question of whether section 70 of the Police Act is ultra vires sections 56(1) and 69(3) of the Constitution was referred to the Constitutional Court in terms of section 175(4) of the Constitution. 2. The applicant's action was stayed pending the Constitutional Court's decision. 3. The request to refer the constitutionality of section 23(3)(b) and (c) of the Road Traffic Act was refused as frivolous and vexatious.
1. Under section 175(4) of the Constitution, a judicial officer has a mandatory duty to refer a constitutional question to the Constitutional Court unless the request is frivolous or vexatious - this determination cannot be delegated to the parties. 2. The doctrines of constitutional avoidance and mootness apply when assessing whether a referral request is frivolous or vexatious - where a remedy is available under other law, or where the constitutional question does not arise from the actual facts before the court, the request may be refused as frivolous or vexatious. 3. Section 23(3)(b) and (c) of the Road Traffic Act only applies to persons who were being carried in, entering, or alighting from the vehicle at the time of the accident - it does not apply to pedestrians or other third parties injured by the vehicle. 4. A constitutional question that raises genuine issues about limitation of access to courts and differential treatment without rational basis is not frivolous or vexatious and must be referred to the Constitutional Court.
The court observed that the right of access to court is fundamental as it provides the platform through which all other constitutional rights are vindicated - without access to courts, all other guaranteed rights become nugatory. This right must be held aloft in a democratic society based on fundamental rights, justice, openness, freedom and equality, and must not be unjustifiably curtailed. The court also noted awareness of the decision in Nyika v Minister of Home Affairs HH181/16 which dealt extensively with the same question regarding section 70 of the Police Act, though that order of invalidity could not be confirmed by the Constitutional Court. The court indicated that the considerations in that case were important but stopped short of adopting them given the limited jurisdiction to assess only frivolity or vexatiousness at this stage.
This case is significant for clarifying the test for referral of constitutional questions under section 175(4) of the Constitution and the application of constitutional avoidance and mootness doctrines. It establishes that judicial officers must independently assess whether a referral request is frivolous or vexatious and cannot simply accept the parties' agreement on this issue. The case contributes to ongoing debate about prescription periods that may limit access to courts, particularly where vulnerable victims of accidents may be unable to institute proceedings timeously due to serious injuries. It also clarifies the limited scope of section 23(3) of the Road Traffic Act, holding that statutory insurance limits only apply to passengers, not pedestrians or other third parties injured by vehicles.