Judgment No. CCZ 6/2015 3
Const Application No. 02/14
is entitled to approach a court alleging that a fundamental right or freedom enshrined
in this Chapter has been, is being or is likely to be infringed and the court may grant
appropriate relief including a declaration of rights and an award of compensation.”
(emphasis added)
The word “court” is not defined in s 332 of the Constitution, but in the context
in which it is used appears to include the Constitutional Court. It seems to me therefore that
on a strict, literal reading of s 85(1)(a), it could be argued, as the appellants briefly do in casu,
that beyond what is expressly stated therein, the wording does not place any restrictions on
the type of person who may approach the Constitutional Court directly.
Firstly, the section is not prefixed with the words “Subject to …” or “Save as
otherwise provided in terms of …”
These phrases are normally used in legislative drafting parlance to indicate that the provision
in question does not have unfettered application but is to be applied only to the extent that it
does not contradict the specific other provisions mentioned. This is clearly not the case in
casu.
Secondly, the applicants are clearly acting in their own interest, and are
alleging a violation of their fundamental rights. Thirdly and more specifically, it could be
argued that s 85(1) does not expressly exclude a direct approach to this Court where the
violations alleged were perpetrated in the course of proceedings in a lower court.
This situation is to be contrasted with some provisions of s 24 of Zimbabwe’s
old Constitution, which effectively are the precursor to some parts of both ss 85 and 175 of
the current constitution. Section 24 read as follows in relevant parts:
“24. Enforcement of protective provisions