Judgment No. CCZ 6/2015 12
Const Application No. 02/14
find anything in the wording of s 85(1(a), that could be said to evince an intention to oust
common law on the issue in point.
Sections 85(1) and 175 (4) of the current Constitution and s 24 of the old
Constitution, all deal with the same subject matter, that is, the methods by which matters may
be brought to the Constitutional Court. To that extent, I am satisfied no basis exists for
interpreting the later provisions in such a way that they do not ‘cohere’ with the earlier
provisions. In other words, the provisions of the old s 24 should be taken as ‘throwing light’
on the provisions of s 85(1)(a) and 175 (4) of the current Constitution.
I find, when all is told, that the above expose and analysis of the law and
authorities on statutory interpretation clearly favour a finding, in casu, that it was not the
intention of the Legislature to oust a procedural regime that ensured order and certainty in the
administration of justice in the courts, and to introduce in its place, one that would result in
absurdity, disorder and ambiguity. Clearly, the anomalies that would flow from a literal
meaning of s 85(1) (a) could not have been intended by the Legislature.
Consequently and except in circumstances akin to those in Martin’s case
(supra), any constitutional issue that arises during proceedings in a lower court ought to and
must be brought to this court only upon referral in terms of s 175 (4) of the constitution. It
follows from this, that the instant application is not properly before this Court.
In the final result, I find that the point in limine raised by the respondent has
merit and ought to be upheld.