Kika v Minister of Justice Legal & Parliamentary Affairs & 19 Ors (HC 2128 of 2021; HC 264 of 2021) [2021] ZWHHC 264 (15 May 2021)

1 HH 264-2t HC 2t28t2l \4IJSA KIKA versus MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and LUKE MALABA N,O. and ELIZABETH CWAIJNZA N,O, and PADDINCTON GARWE N. O, and RITA MAKARAl] N. O. and ANNE. MARY GOWORA N. O. and BEN HLATSWAYO N. O and BIIARAT PATEL N. O. and ANTONIA CUVAVA N. O. and SUSAN MAVANGIRA N. O, and CHINEMBIRI ENERGY BHLNU N,O, and TENDAI UCHENA N. O. and NICHOLAS MATHONSI N. O. and CHARLES HUNGWE N. O. and FELISTAS CHATUKUTA N. O. and ALFAS CHITAK1JNYE N. O. and SAMT'EL KUDYA N. O. and LAVENDER MAKONI N. O, and JUDICIAL SERVICE COMMISSION YOUNG LAWYERS ASSOCIATION OF ZIMBABWE and FREDERICK CHARLES MOSES MUTANDA vercus HC2I66/21 HH 264 21. JI ]DICIAL SERVICF- COMMISSION and HONOUMB],E CHIEF JUSTICE LUKE MALABA N. O. and ATTORNEY. GENERAL N. O. HIGH COUR'I' OF ZIMBABWE ZHOU, C}IAREWA & MUSHORE JJJ HAMRE, 15 May 202l : Urgent Application T. Llpofu,withhim T. Biti and T. L. Mapuranga, for the applicant in HC 2128121 D. Drury, with hirn A. Dracos, fot the applicants inHC 216612l T. Magwaliba, withhim G. Madzoka andMs F, Chi bdtu fot the l'i respondent in HC 2128/21 and the 3d respondent inHC 2166121 A. B. C. Chinake, withhirn N. Mugahdi\'a, for the 2od !o 196 respondents in HC 2l28l2l and 2tu rdspondent in llC 2166/21 ZHOU, C}IAREWA & MUSHORE JJJ: Introduction. Thisjudgment is in respect oftwo matters, HCZl28lzl aidHc2166/21. The two matters were heard together because the substance of their complaints is the same. Both matters were brought by wa) of application. HC 2128/21 was instituted as an urgent court application while HC 2166121 was brought as an urgent chamber application. Both applications are opposed by some of the respondenls. Opposing papers, answering affidavits and heads of algument were filed following acase management meeting with the parties' representatives at which the dates for filing the papers werc set by consent. In case no. HC 2l28l2l the applicant, a legal practitioner and director of the Zimbabwe Human Rights NGO Forum, cited the Minister ofJustice, Legal and Parliamentary Affairs, and all the judges of the Constitutional Court and Supreme Court as well as some of the judges of the High Court on the basis thal they are actingjudges ofthe Supreme Court orhave been called upon to act as such. Thejudges were cited in official capacities TheJudicial Service Commission (JSC) was joined in the proceedings at its instance at the case management conference lnHC2166/21 the respondents cited are the JSC. The ChiefJustice of Zimbabwe Honourable Luke Malaba NO' HH 264-27 and the Attorney General NO. The applicants in that case are Young Lawyers Association of Zimbabwe and Frederick Charles Moses Mutanda. a lib€ration war veteran. Backqroupd. On 7 May 2021 the Constitution ofZimbabwe Amendment (No.2) Act, 2021, became law after being assented to by the President. The contentious aspects ofthe Amendment Act which are the subject ofthe instant applications are found in its s 13. That section repealed section 186 ofthe Constitution ofZimbabwe and substituted it with a new s 186. Upon gathering that s 186 introduced by the amendment would apply ro the second to eighteenth respondents the applicants instituted the two applications. The applicant ir Case No. HC 2l28l2l seek the following relief: .. IT IS DECLARED THAT: l. In accordance with provisions of sections 186( I )(a) and I 86(2) (of the Constitution of Zimbabvte 2013) in their original lorm and notwithstanding provisions of Constitutional Amendment Number 2, second to eighleenth respondenls hold omce until ihey reach the age of seventy years, whereupon they must by operation of law retire. 2. The atlempt to subvertthe position encapsulated inthe "original" section 186(lXa) and 186(2) of the Constitution of Zimbabwe, 2013 is contrary to law and therefore in breach of appl icanr's right to the protection ofthe law as set out ifl section 56(1) olthe Constitution of Zimbabwe, 2013. IT IS CONSEQUENTLY ORDERED THAT: 3. LUKE MAIABA must or did at midnight on 15 May 2021 cease to hold the office of CHIEF JUSTICE OF ZIMBABWE. 4. Any action, conduct or deed of LUKE MALABA post the 15s of May 2021 purportedly as CHTEF JUSTICE OF ZIMBABWE is null and void and ofno effect 5. ln accordance with the provisions of section 181 of the Constitution of Zimbabwe, 2013, wifi effect from midnight on the l5t of May 2021, ELIZABETH GWAUNZA became/becomes the ACTING CHIEF JUSTICE OF ZIMBABWE until such a lime as a substantive CHIEF JUSTICE OF ZIMBABWE is aPpoinled. 6. In accordance with the provisions of section I81 of the Constitution of Zimbab',ve, 20 13, with eflect from midnight on the t 5s of May 2021, PADDINGTON GARWE becamdbecomes the ACTINC DEPUTY CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive DEPUTY CHIEF ruSTICE OF ZIMBABWE is appointed. 7. There shall be no order as to costs " During argument counsel for the applicant abandoned the reliefsought in para 6 ofthe draft order and moved that the draft be amended accordingly. We point out that notwithstanding the statement suggesting that what is being sought in Paragaphs 3-7 ofthe draft order is consequential relief, the relief is clearly in the form ofa declaration. HH 264-21 The second to eighteenth respondents did not file opposing papers. They will therefore be taken not to have opposed the application, see Prosser & 35 Others y Ziscosteel Company Ltdt and, Pattganai and 20 Oircls y Kadir & Sohs (Pvt) Ltd.z We do not accept the submission by their counsel that rhey oppose the application without Iiling opposing papers. This is because the directions issued on 12 l^y',.ay 2021 required the respondents to file opposing papers if they were opposing the application. Their grounds ofoppositiofl would have to be contained in the opposing affidavits. ln Case No. HC 2166/21 the applicant sought declaratory reliefas follows: .. IT IS DECLARED TI. IAT: 1. The first respondent in failing to activate the provisions of section 180 of the Constitution of Zimbabwe Amendment (No 20) Ac! 2013 and/or the provisions of seclion ! 80 ofthe Constitution ofzimbabwe as amended by Constilution ofzimbabwe Amendment (No. 2) Act, 2021 (No. 2 of202l) diligently and without delay violated seclion 324 ofthe Constitution ofZimbabwe as amended. 2. The second respondent cannot, by virtue of section 328(7) of the Constituiion of Zimbabwe, as a$ended, benefit fiom the term limit extension as introduced by an amendment ofsection 186 by the Constitution ofzimbabwe Amendment 0{o. 2) Act, 2021 (No. 2 of2021). 3. As a consequence of2 above, the second respondent shall vacate office as the Chief Justice of Zimbabwe on (s,c) midnight of l5 May 202l. 4. Any action, conduct, act or deed of second reslrcndent post the 15s of May 2O2l purportedly as ChiefJustice ofZimbabwe is null and void and ofno force or effect, 5. Any attempt to continue in office by second aespondent as ChiefJustice ofzimbabwe and/or any continuation in office by second respondent purportedly as ChiefJustice of Zimbab*,e violates applicants' right ofaccess to a court oflaw established by law and applicants' right to protection ofthe law in accordance with section 69(4) and section 56(l ) ofthe Constiiution ofZimbabwe as amended. 6. The second respondent, in any event, can no longer be ajudge ofthe Constitutional Coun for more than 15 years in violation of se€tion 186(l) of the Corstitution of Zimbabwe as amended. 7. ln the altemative, section 14 ofthe Constitution ofZimbabwe Amendrne (No. 2) Act, 2021 (f{o. 2 of 2021) is invalid for violating section 56(3) of the Constilution of Zimbabwe al1d is accordingly struck down. 8. There shall be no order as to cosls." The reliefset out in the first paragraph was not persisted with as it was predicated upon a misreading of the constitutional provisions pertaining to the appointment of a Chief Justice in Zimbabwe. The applicants were under tlre mistaken belief that the first respondent, the JSC, had the mandate to call for candidates to participate in an interview. Section 180 ofthe Constitution provides that the ChiefJustice is appointed by the President after consultation with the JSC. The I HH 201-93, pp.2-3. , HH 26-95. AH 264.21 relief sought in paragraphs 2, 3, 4 and 5 is the same one being sought by the applicant in HC 2l28Dl save for the reference to s 69(4) ofthe Constilulion. The reliefsought in paragraph 6 of the draft order was abandoned during argument, Also, the applicant did not make any submissions in suppolt ofthe altemative reliefbeing sotrght in paragraph 7 ofthe draft order. We take it that this reliefseeking the declaration ofinvalidity in respect ofs 13 (which was inconectly referred to as s 14) ofthe Constitution ofzimbabrve Amendment Olo. 2), 2021, is not being persisred wirh. Preliminarv issues and obiections. The parties raised preliminary issues and objections. The first issue pertained to the recusation of the judges sitting in thjs matter. We dismissed the application and a.lvised that the fullreasons wor-rld be contained in the finaljudgment. Briefreasons wercgiver,intheet tempore judgment that we delivered on 15 May 2021. Befo.e dealing with the substance of the mafter it is important to advefi to two issues, These issues arise from the submissions made on behalf of the respondents by the legal practitioners representing them as well as from the affidavit ofthe Attorney-General. Thg first one is the suggestion that judges are employees of the JSC, the nineteenth respondent in HC 2l28l2l and first respondent in HC 216612l. That is a misapprehension of the colstitutional position. Judges are not employees but are constitutional appointees. They are appointed by the President in terms ofthe Constitution. The second point is the reference to the High Court as an inferior court. That, too, is a misapprehension. The High Court, under both the old constitutions and the curreht Constitution, is a superior court. These are fundamentals that the court expects every legal practitioner to be aware of, hence the need to higltlight them herein. Apolicalion for recusal. The application on behalf ofthe second to nineteenth respondents pertained only to ZHou J. As already noted, the second to eighteenth respondents have hot opposed the applications. The grounds advanced are that thejudge is confl icted in that he was a Commissioner ofthe JSC for a period of6 years and, secondly, that he participated in the interviews for the selection of Constitutional Courtjudges which were held in September 2020. There was also the submission that the entire High court bench, or, altematively, the judges who constitute the panel ,,, cdr , would be biased. An application for the recusal of a member of a court or tribunal based on interest has its loundations in the principle of naturaljustice known as leto j elex i1,tr4 c4r.ta. The test lorbias HH 264-2?, is an objective one. Applicant must show a reasonable possibility ofbias.s ln the case ofBerzerr v Absa Bqhk Ltd, the Constitutional Court of South Africa held that in the context of an allegation ofjudicial bias the "double reqirirement of reasonableness" must be satisfied, that both the person who apprehends bias and the apprehension itselfmust be reasonable,a When one considers that there is a presumption of impartiality, the need for genuine evidence or facts upon which the allegations ofbias are founded is enjoined.5 On the other hand, it is understood that an application for recusal of ajudge necessarily places the party making it, pafiicularly the legal practitioner, in an unenviable position. For this reason, courts must not be ove.-sensitive to such an application beilg rnade for their recusal as the rules of natural justice are an important featurc oFthe right to a fair hearing. Zhou . J having left the JSC in February 2020, a period ofabout l5 months has passed. The matters in rhis case do not arise from what happened up to mid-February 2020. Mr Chinake relened to a resolution by which the deponent to the nineteenth respondent's affidavit was authorized to act. He submitted that the resolution was made during the period prior to February 2020, and that some of(he applicants had challenged the authority ofthe Secretary ofthe JSC. The resolutiol speaks for itself and no evidence outside it or pertaining to how it came into existence was debated in this case. The challenge pertained to whether the Secretary had been authorized by the JSC to apply for its joinder and to defend the applications. No interest arising out of previous membership of the JSC has been shown which would suggest a reasonable possibility ofbias. The issue ofthe interviews for appointment to the Constitutional Court does not arise in this case. The provisions which are the subject matterofthese applications introduce a new regime for appointment ofsittingjudges to the Constitutional Court and Supreme Court. No interest can be impued arising out ofthe interviews rvhich would have a b€aring on the present applications. The move for the recusation of the entire panel ofjudges was predicted upon two grounds as advanced by N4r Ma8)raliba fot the first respondent and the Aftomey General. The first ground was that the amendments which were introduced by s 186 of the Constitlltion of Zimbabwe Amendment (No. 2) 2021 disadvantage High Courtjudges because their retirement age limit was 3 Leapord Rack HotelCampany (Pvt)Ltd & AnotvWolenn construction rgg4ltl ZtR 2SSIS) { 201113)sa 92 (ac}para 34 t Benert v Absd Eonk Ltd, supto,pata35. HH 164-21, not extended to 75 years, The submission was that the High Court should not therefore hear the instant applications. This startling submission which was directed at all the High Courtjudges, including those who arc not on thl. panel, assumes that extension ofworking age to 75 years is a benefit. That is a misapprehension not based on an inteNiew ofany ofthe High Coufijudges. The additional ground was that the judges sitting in this mafter were constituted by the Judge President who is a commissioner of the Judicial Service Commission, and would be conflicted. The allocation ofcases to judges is an administrative function which judges have no control over. The involvement ofthe office ofthe Judge President is purely in the discharge ofhis administrative function. The insinuation by Mt Magraliba lhaLlhe judges may have been picked for some other improper purpose in this matter is not based on evidence and is a reckless submission by a legal practitioner who is an officer ofthis court. The suggestion that the panel ofjudges was biased because they truncated the deadline for filing papers is unsound. The dates were discussed afld agreed upon having regard to the basis of the urgency, which was that the second respondent was tuming 70 years old on 15 May 2021. The. court has inherent power to control its prccesses and procedures. Secondly, the dates were established with the involvement and consent of those who instructed N4r Magwaliba 'fhe directions issued in respect of the filing of papers could therefore not be evidence of bias or an interest in the matter as suggested. For these reasons, we dismissed the application for recusal ofthejudges. UrgencY. The respondents revisited their objection that the matters were not urgent and consented to the matters being dealt with on an urgent basis. Accordingly, we relate to the matters on an urgent basis. Mr Chinake advised that his clients were abandoning the points i lihihe based on the grounds that the case had become moot and that the form used in the court application rendered the application invalid. He, however, persisted with the objections pertaining to misjoinder ofthe secondto gighteenth respondents andjurisdiction ofthis coun. The first respondent persisted with all the objections ,r? /imrre except the one p€rtaining to the urgency ofthe matter. These objections therefore have to be considered. The iurisdiction of this Court. The obiection to the.jurisdiction of this court dealing with the matter was not argued notlvithstanding the indication that it was being persisted with. l"4t Chinake accepted lhat this Ht 264-21 court does have the jurisdiction to grant a declaratur, in terms of s 14 of the High Court Act lChapter 7:06f. He, however, made two points. The first one, namely, that any order that this coufi makes remains not operational until it is confirmed by the Constitutio[al Court is incorect. Only the orders referred to in s 175(l) ofthe Constitution become elfective after confirmation by the Constitutional Court. The second submission was that this court has no authority to appoint judges or decide on the hierarchy ofthe courts. However, this application is not concemed with the appointment ofjudges or the setting oftle hierarchy ofthe courts. These are matters which are contained in the Constitution. Both points are in any event irrelevantto the issue ofjurisdiction which had becn raised. The olrjections set out in paragraphs 17.1 and 17.2 ofthe opposing affidavit ofthe first respondent in HC 2166/21 were not persisted with in argument. These objections were that this court has no jurisdiction to grant consequential reliefand that such consequential reliefwould be in violation of s 167(3) of the Constitution. However, as has been pointed out above, notwithstanding that in the draft order being sought the relief is presented as ifit is consequential reliefwhat is lrcing sought is in fact and substance a declaratur. The raising of the point in limine lhalthe court has no jurisdiction is misconceived- The objection is therefore dismissed. The form used in the court application. The respondents' objection is that the coud applicaiion flled on behalfofthe applicant is not in Form 29, as is required by r 230 ofthe High Court Rules, 1971. The respondents poilt out that the form filed does not alert the respondents to their procedural rights, such as the consequences of any failure to oppose the application. The only missing portion ofForm 29 is the one thal wams the respondents that ifthey fail to file their opposing p apers within the di es ihduciae then the mattelwould be deaitwith as an unopposed application. [n allthe otherrespects the Form complies with the requirements ofForm 29. The dies induciae are not cootained in the Form 29 itselfbut are stated in r 232. The failure to state the period often days cannot therefore be a failure to comply u,ith Form 29. The other requirements ofForm 29like the need to file a notice ofopposition and opposing affidavit, the need to serve opposing papers, and the entitlement to attach annexures to the opposing affidavits, are stated. Given that t-his application was filed under a certificate ofurgency and with truncated periods for filing papers, and would be subject to the directions to be issued by t1H 264.2?, thejudges who would be seized with the case, we do not believe that it would have been up to the applicant to warn the respondents ofthe consequences of a failure to file opposing papers within the proposed dies induciae which were, after all, proposed by the applicanrs, These would be subject to whatever directions that the court would give. These directions were given with the consent ofall the padies. No prejudice was occasioned by the failure to state the coNequences of a failure to file the opposing affidavit within the pe od proposed. Those who intended to oppose the applications did file their opposing papers in accordance with the directions issued. We take note of, aod draw attention to, the provisions of s 85(3)(c) ofthe Constitution, rvhich state that: 'the court, while observing the rules of natural juslice, is not unreasonably restricted by procedural technicalities". Civen that ail the parties had the opportunity, by consent, to file the opposing aDd answeritg affidavits and heads ofargument, the objection pe(aining to the form used cannot be sustained having regard to the important constitutional questions which a se from the papers. For these reasons we dismiss the objection. No leaye sought to sue sittins iudqes. The respondents rely on r l8 ofthe High Coun Rules, 1971 for the objection thai the failure to obtain the leave ofthe coud to sue the judges renders the proceedings fatally defective. That rule provides as follows: "No summons or other civil process ofthe cout may be sued out against the President or against any ofthejudges ofthe HiSh Court without the leave ofthe court granted on court application being made for that purpose," A document which initiates application proceedings is not "civil process", save fo! the purposes of Order 5.6 That is the reason why in terms ofr l8 leave to sue out process is sought by way of court application. lf a court applicatiod was 'lrocess" there would be the absurdity that one would then require the leave of court to institute the court application provided for in r l8 since the affected judge would have to be cited in that appliaation, Rule 18 falls under Order 3 which deals with summons matters. In Order 32 which deals with applications there is no Fovision which is similar to r 18. So olearly r l8 is not ofgeneral applicalion to all proceedings iEespedive ofhow they are instituted. Further, the applications rr ca.ta were made in terms ofs 85 ofthe Constitution There is no requirement for such leave to be granted in an application made in terms ofthat section. Further 5 see order s r l. and, in any event, second to eighteen respondents are cited in their official capacities. They have not filed opposing papers challenging their citation without leave. ln any case, even if they had done so and tlre court had found that such leave was required, the effect of that finding would not HH264.:l have been to Dullify the entire proceedings. The ,ocus stdfdi ofthe aDplicants. The objection taken by ltlr Magwaliba for the firct respondent it HC 2128/21 and third respondent in HC 2166121 is that the applicants have not shown a legal interest which would be or has been intefered with or a constitutional righr which has been or would be infiinged. The applicants in troth applications allege violation oftheir fundamental rights as well as violation of the Consti(ution ifthe second to eighteenth respondents are to continue to occupy the oIIice of judge aft€r attairing the age ofseventy years, The Constitution of Zimbabwe widened the scope of locus standi in respect of matters pertaining to infringement offundamental rights, see s 85(l) ofthe Constitution, The applicaflts are alleging violation of their fundamental ri8hts. This gives them the locus stdfidi to apprcach the court for relief. A restrictive interpretation of locus standi in respect of alleged violations of the Constitutional rights was rejected in lhe case of Mataarire v Mugabe NO & Ots 2013 (l) ZLR 469(CC) at 477D-E where the Courl said: "Ce(aiily this court does not expect to appear before it only those who are dripping wirh the blood ofthe aclual infringement oftheirrights or those who are shivering incoherently with the lear ofthe impending threat which has actually engulfed them. This court will entertain even those who calmly perceive a looming inlringement and issue a declaration or appropriate order to stave offthe tlreat, . ." ln the ,\[awarire aasethe applicant alleged that his right to protection of the law in terms of s l8(l ) of the old Constitution of Zimbabwe had been- was being or was likely to continue to be violated by a failure to fix a date for the holding of elections. ln the instant applications the applicarts allege violation ofs 56(l) and s 69(3) ofthe Constitution. In any event, ensuring compliance wirh the provisions ofthe Constitution is not only an entitlement but an obligation of every citizen olZimbabwe, This givesthem thelocus rt@ldilo apprcach the court for enforcement ofthe constiturional rights. whether the violations will be established is a matter for argument on the flerits. HH 264-21 In the premises, the objectionto the locus standi ofthe applicants to approach the court is unfounded and must fail. Misioinder ofthe second to eishteenth respondents in HC 2128/21 apd their citation. The first and nineteenth respondents took rhe point that there was misjoinder ofrhe second to eighteenth respondents. II1 thg case ofzz babwe Teachers Association dnd Others y Ministet of E()ucationT, it was held that a party is entitled to participate in a suit if it has a direct and substa[tial interest in the subject-matter and outcome of the application. wllat is required is a legal interest, not a financial interest which is only an indirect interest in the litigation. In this case the respondents are the persons who held or occupied the offices ofjudges of the Constitutional Coufi and Supreme Court. The question of whether they should retire at the age of seventy years or they have an election to have their stay in office extended affects them directly, In fact, the second respondenl reached seventy years old on 15 May 202I, and the extension ofhis term of office beyond the age of seventy is a question to be determined in the inslant matterc. Wtether the fifteenth, sixteenth and seventeenth are affect€d by the order ifgranted is a matter that pertains to the merits ofthe case- The fact is that they are cited and reliefis being sought against them as ivell. In any event, the first and nineteenth respondents cannot plead a case on behalf oiparties who have not defended the suit. After all, r 87( I ) ofthe High Court Rules, 1971, provides that the misjoinder or non-joinder ofa party does not defeat the cause as long as the issues before the Court can be determined in respect ofthe panies before it. It goes fufiher to state that the court may in any cause or matter, determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter. The objection is dismissed. Non-ioinder ofParliament and the Presidelt Th€ objection is that Parliament, the Speaker ofthe National Assembly, the President of Senate and the President of the Republic of Zimbabwe ought to have been cited in these proceedings. The basis of this objection, as appears from paras l8.l-18.4 ofthe nineteenth (espondent's opposing affidayit i,nHC 2128/21, is that what is being solrght to be impugned is the Constitution of Zimbabwe Amendment tNo. 2), 2021. However, what is involved is the inte.pretation ofthat Act and the Constitution and the constitutionality ofsome of the provisions ofthe Amendment Act. These are matters that fallwithin the domain ofthe court. lnterpretation , 1s9o (2) zLR48(Hc) at 52Fs3E. HH764.rl ofthe lalv is the primary duty ofthe Court. Neither Parliament nor the President has a role in thai process. Once the Legislature makes a law it would have discharged its mandate. It cannot be called upon to appear before a court to answer to questions pertaining to the alleged unconstitutionality ofthe law or the meaning or effect of that law, unless \rhat is being raised is whether it has complied wilh the oonstitutional procedures in making the law. In relation to the President ofthe Republic, there is the submission that he has written the letter of I 1 May 2021 in terms of which the second respondent's term of office was extended. However, the cause of action in both applications is not founded upon the letter of i I May 2021. Accordingly, rhis objection is without merit alrd is dismissed. The alleged absence of a cause of action. This objection is taken by the third respondent in HC 2166/21, in paras 7-l I of the heads of argument. Although it is raised as an objectiot\ i linline the submissions show that it is an argument on the merits ofthe matter. The point being made is that the applicants inHC216612l failed to establish their entitlement to the ght ofaccess to couts as enshrined in s 69(3) ofthe Constitutior and how the continued occupation of the office of Chief Justice by the second respondent violates the applicants' rights as protected by s 69 and s 56 ofthe Constitution. This objection is therefore dismissed. Whether the matter has b€come moot. The first respondent in HC 2128121 and the third respondent in HC 2166/21 contend that tle dispute between the applicants and second respondent has become moot by reason ofthe first respondent's term having been extended prior to the hearing ofthe matter. It is common cause that a letter was written on behalf of the President on I I May 2021, the sams day that the first application was instituted. The letter \,r'as produced as an annexure to the opposing papers for the JSC, In terms ofthe letter the President agreed to extend the second respondent's colltinued stay in office as ChiefJustice with effect from 16 May 2021. The doctrine ofmootness is one ofthe prudential considerations on the basis ofwhich on public policy considemtions a court may decline to exercise itsjurisdiction to determine a matter which has corne before it. This would arise where there is no remaining triable issue. A case is moot and therelore notjusticiable if it no longer raises an exta[t or live dispute, harm, conroversy or threat of prejudice to the applicant, see S v Dlarhi i; S v Dladlo; S v Joubert; S v Schietekat.s s 1999(4) sA 62.r(CC) para 27. '. **runll. ln the case of Nalional Coalition for Gay and Lesbian Equality ond Another y Ministel ofJustice and Others the co].,.ri stated that a matter ceases to be justiciable on the ground of mootness if it 'ho longer p(esents an existing or live controversy",9 The doctrine is applicable where a matter is brought to court too late when the issues to be determined have been resolved or, as is sometimes said, when the horse has already bolted out ofthe stable. See, for example, DeFunis v Odegaard,to a case in which the applicant challenged the decision of the Admission Committee of the University of Washington Law School to deny him admission. He alleged that he had been denied enrolment on grounds of racism. By the time that the matter got to the Supreme Coun the Law School had adDitted the applicant as a student and he was now registered for his final quaner in the Law School. The Supreme Court of the US held that it could not consider the substantive constitutional issues raised because the controversy had been resolved. The jurisprudential rationale for the doctrine. as explained in the case of JT Publishing (Pty) Ltd ahd Another v Minister oJ Safety and Securily and Others, caurts should avoid deciding points that are "abstract, academic or hypothetical".l I 1r? cafl the dispute remains alive notwithstanding the writing of the letter of I I May 2021. The issue ofwhether s 186 of t-he Constitution has the effect of extending the tenure ofoffice of the second to eighteenth respondents asjudges beyond the age ofseventy years temains alive. The question ofthe retirement age for the second respondent and the otherjudges ofthe Constitutional Coufi and Supreme Court was not rcsolved by that letter. Ior these reasons the matters raised are not abstract; they are not moot. The objection must therefore fail. The applicants' obiectiotrs i, /iriira The applicants in their answering papers also raised objections ir? /lr?ire to therespondents' papers. The authority of Walter Chikwana, the Secretary ofthe JSC, to motivate thejoinder ofthe nineteenth respondent was questioned. The application forjoinderwas not made on affidavit but was made orally at the case management confeience. lt was not based on any allidavit. The joinder was granted wirh the consent of the applicants. Therefore, the objection to the joinde. cannot stand. '! 1999 (1)sA 5{cC)para 21- 10 {1974)415 US 312. 111997 {3) sAs14(cc)para 15. ' ^ "o')l There was also the question as to whether the JSC had authorized the deponent to the affidavit to defend the matter or pa icipate jn it, it being clear from the resolution attached that the authority given is merely "to sign documents on behalf ofthe JSC in litigation matters". It is not in every casethat the courtwould insist on a resolution to authorize ordefend proceedings. Where ajuristic entity has brought itselfbefore the coud, particularly where it is represented by a legal practitioner, it is up to the peNon alleging want of authority to produce evidence to suppot the allegations. lo the case of MsdziNile & Others y Zyaiyadza & Othersl2 lhe dispote involved directors who were competing to control a company, hence the issue ol the authority of the conlpany lo padicipate in ihe proceedings had to be proved after being put in issue. In the present cases there is no evidence led to suggest that the legal practitioner who appeared had no authority to represent the JSC to apply for itsjoinder or to file opposihg papers on its behali Accordingly, the objection is dismissed. The olher points taken are that the Attorney-General has no authority to depose to an affidavit on behalf of the first respondent in HC 2128121 and that, in any event his opposing affidavits in both cases were not properly commissioned and are therefore invalid. The Anomey- General is the principal legal advisor to the Govemment and has the authodty to represent the govemment in civil and constitutional proceedings. Ifhe has knowledge ofthe facts to which he deposes he rvould not be disqualified from deposing to an aflidavit on behalfofthe Government. In this case he explains why tle first respondent was unable to depose to the affidavit himself by reason of being unavailable. I{e fufther explains that his defence is largely based on legal issues \yhich would be within his domain. We iherefore do not believe that he is disqualified from deposing to the affidavit. The second ground of objection is that the affidavits deposed to by the Attorney-General were swom to before the very same legal pmclitioner, Ms E Chimbartt, who is appearing in these proceedings. Ordinarily she would be disqualified from commissioning the affidavits by reason ofher jnterest in the matter given her involvement. No acceptable reason was given as to why no other commissioner of oaths could commission the documents. Be that as it may, given the urgency invoh ed in these matters, the court is prepared to tum a blind eye to these deficiencies in 1' 2006 (1)ZLR s14(s). ' order to deal with the substance ofthe matter. Accordingly, the objections in respect of the HH 264-l; affi davits are dismissed. The dispute on the merits. This dispute stands to be resolved on the effect of section 186 ofthe Constitution of Zimbabwe as introduced by the Constitution ofZimbabwe Amendment (No.2) 2021 in light ofthe provisions of s 328 ofthe constitution ofZimbabwe. The new section 186 providesi . '186 Tenure ofoflice ofjudges (l) The ChiefJustice and the Deputy ChiefJustice hold office from the date oftheir assumption of offrce until they reach the age of 70 years, when they must retire unless, before they attain that age, $ey elect to continue in office for an additional five years: Provided that such election shall be subject to submission to, and acceptance by the President, after consultation with the Judicial Service Commission, ofa medical report as to their meDtal and physical fitness so to continue ifl office. (2) Judges oflhe Constitutional Court are appointed for a noo-renewable term ofnot more than l5 years, bu1- (a) tbey must retire earlier ifthey reach the age of70 years unless, before they attain that age, they elect to continue in office for an additional five years: Provided that such election shall be subject to submissionto, and acceptance by the President, afrer consuhation with the Judicial Service Comhission, of a medical report as to the mental and physical fitness ofthejudge so to continue in office; (b) After the completion oftheir term, fiey may be appointed as judges ofthe Suprenie Court or the High Courl at their option, ifthey arc eliSible for such appointhent. (3) ludges ofthe Supreme Comt hold office fiom the date of their assumption ofoffice until they reach the age of75 years, when they rnust retire ur ess, before they attain that age, they elect to continue in office for ah additional five years: Provided that the election shall be subjecttolhe submissionto, and acceplance by the President, aiier consullation with the Judicial Seflice Commission, of a medical report as to the mental and physical fitness ofthe judge so to continue in off;ce. (4) Notwithstanding subsection 7 ofsection 328, the provisions ofsubsections (1), (2) and (3) of this section shall apply to the continuation in olfice ofthe ChiefJustice, Deputy ChiefJustice, judges ofthe Constitulional Court andjudges offie Supreme Court. (5) Judges offie High Court and any otherjudges hold office from the date oftheir assumplion of office unrit they reach the age of?o years, when lhey must retire. (6) A person may be appointed as ajudge ofthe Supreme Court, the High Court or any other court for a fixed term, other thafl in an acting capacity, he orshe ceases to be a iudge on reachingthe age of75 yearc (ln the caseofajudge ofthe Supreme Court.) or 70 years (inthe case ofajudge ofthe High Court or any other court) even ifthe term ofhis or her appointment has not expired, (7) Even though ajudge has resigned or reached the age of retirement or, in the case ofajudge of the Constitutional Coud, reached the end ofhis or her term of of{ice, he or she may continue to sit as ajudge for lhe purpose ofdealing with any proceedings commenced before him or her while he or she was ajudge. (8) Ajudge may resign from his or her ofiice at any time by written notice to the President given throu8h the Judicial Service Commission. (9) The office ofajudge must nor be abolished during his or her tenure ofoffice-" Its effect isto extend the retirement age ofthe ChiefJustice, depuly chiefjustice andjudges ofthe Constitutional and Supreme Court as will be dealt with in due course. HH 254-21 In this section- Sectiorl 328 ofthe Constitution ieads as follows: "328 Amendment oI Constitution (l ) "Constitutional Bill" means a Bill that seeks to amend this Constitution; "termlimit provision" means a provision ofthis Constitution which limits the length of time that a person may hold or occupy a public office. (2\ An Act ofParliament that amends this Constitution must do so in express terms. (3 ) A C onstituti onal Bi II may not be presented in the Senate or the National Assembly in term s ofsection lJ1 unless the Speaker has given at least ninety days' notice in rhe Gdzel/e of the precise terms ofthe Bill. Immediately alier the Speaker has given notice of a Constitutional Bill in terms of subsection (3), Parliamentmust invite members ofthepublic to express rheir views on the prcposed Bill in public meetings and throu8h writlen submissions, and must convene meetjflgs and provide lacilities to enablethe public to do so. (5) A Constitutional Bill must be passed, at its last reading in the National Assembly and the Senate, by the affirmative votes of two-thirds ofthe membership ofeach House. (6) where a Constitutional Bill seeks to amend any provision ofchapter 4 or Chapter 16- (4) (.) within three months after it has been passed by the National Assembly and the Senate in accordance with subsection (5), it must be submitted to a national referendum; and ii it is approved by a majority ofthe voters voting at the referendum, the Speaker of the National Assembly musi cause it to be submitted without delay to the President, who must assent to and sign it forthwith. (b) (7) Notwithstanding any other provision of this section, an amendment to a term-limit provision, the eflect of which is to extend the length of time that a pe$on may hold or occupy any public oflice, does not apply in relation to any person llho held or occupied that oflice, or an equivalent office, at any time beforethe amendment. (8) Subsections (6) and (7) must not both be amended in the same Constitutional Bill norrnay amendments to both those subsections be put to the people in the same referendum. (9) This section may be amended only by following the procedures set out in subsections (3),(a), (5) and (6), as ifthis section were contained in Chapter 4. (10) when a Constitutional Bill is presented to the President lor assent and signature, ir must be dccompanied b) (a) (b) a certificate from the Speaker that at its final vote in the National Assembly the Bill received the alfirmative votes ofat least two-thirds ofthe membeEhip of the Assembly; and a cetificate from tlrc Presideni ofile Senate that at its final vote in the Senate tbe Bill received th€ aflirmative votes ofat least two-thirds ofthe membership ofthe Senate." We draw particular attention to the provisions of s 328 (7) because this matter revolves around its relationship with section 186, and the effect ofthat relationship on the tenure ofoffice ofthe Honoumble Justice Luke Malaba and the otherjudges who are cited as rcspondents in Case No. HC 2128/21. L7 HH 26+27 The aDplica[ts' and resDondents' contentions. The applicants' case is summarized in paras 6l-65 ofthe founding affidavit in HC 2128/21 and paragraphs 17-21 ofthe founding affidavit in HC2166/21, [t is that the second respondent and the other persons cited who occupy fie offices ofjudges of the Constitutional Cout and Supreme Couft cannot remain in olfice beyond the age of70 years notwithstanding the provisions ofs 186 ofthe Constitution as substituted by the Constitution ofzimbabwe Amendment (No. 2) 2021. The essence ofthe respondents' case is that s 186 did not affect the term-limit or tenure of thejudges ofthe Constjtutional and Supreme Courts, and is therefore not affeoted by the provisions of s 328(7) ofthe Constitutjon. ln other words, what has to be decided i, caJ, is whether the second to eighteehth respondents retire upon reaching the age of70 yearc or are entitled to elect to continue in office for an additional five years until they reach the age of75 years. This issue can only be resolved by interpretation ofsections 186and 328(7) ofthe Constitution. It is important to give an ove iew of the principles of interpretation which apply to constitutional provisions in geheral insofar as these have a bearing on how these two sectiorc should be understood. The xnDroech lo consiilutional itrteroretalion. According to Iain Cufiie & Johan de Waal The Bill of righls Handbook 61h ed. p. \33, "Constitutional interpretation is the process of determidng the meaning of a constitutional provision." Thus, interpreting a constitution entails giving "meaning", which we understand in its wide sense, to the provisions of a constitution. An interpretation that does not give effect to the purpose ofthe provision does not give meaninglo il, see Judicial Service Commission v Zibani & Others.lr Thetextual provisions ofthe constitution under consideration are the starting point but they should not be considered and interpreted piecemeal or in isolation. We therefore do not agree wilh the submission by Mr Magwaliba that the cases of Natal Joint Municipal Pension Fund v Enduhreni Mu icipalityta xd Zambezi Gas (Pvt) Ltdv NR Bafier (Pvt) Ltd & Anothel5 introduce a new and different paradigm to the interpretation of constitutional provisions. The textual provisions must be construed contextually having regard to the constitution as a whole, see Malatiele Municipality v President of the republic ol South Aftica,t6 The prefeted approach is 1! 2017 (2)ZLR 114(S)at 123G-H. 14 20x2 (4)SAs93. 6sc3-20. 16 2007 (6)SA477(Cc), para 36. HH 264-21 the 'generous' and 'purposive' interpretation that gives expression to the underlying values ofthe Constitution, as was held in S v Makwanyane.t1 Section 46(1) ofthe Constilution provides as follows: I I "(1) When interpreting this Chapter (read'Constitution'), a court, tribunal, forum or body (a) must give full effect to the rights and freedoms enshdned in rhis Chapter; (b) must promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and lieedom, and in particular, the values and principles set out in section 3; (c) must take into account intemational law and all treaties and conventions to which Zimbabwe is a party; (d) must pay due rcgard to all the provisions of this Constitlttion, in particular the principles and objectives set out in Chapter 2; and (e) may consider relevant foreign law." The starting point is to appreciate that in Zimbabwe the Constitution is thg supreme la1v, This fundamental tenet ofdemocracy is enshrined as a rule and as one ofthe values and principles upon which the nation ofZimbabwe is founded. Section 2 ofthe Constitution provides as follows: "2 (1) This Constitution is the suprefte law ofzimbabwe and any law, praclice, custom or SupremacyofConstitution conduct inconsistent with it is invalid to the extent ofthe inconsistency. (2) The obligations imposed by this Comtitution are binding on every person, natural or juristic, including the State and all executive. legislative and judicial institutions and agercies ofgovernment at every level, and must be fulfilled by them." Section 3 ofthe Constitution states the following, among otherthings: Founding values and prlnciples "3 (1) Zimbabwe is founded on respect for the following values and principles - (a) Supremacy ofthc Constitution; (b) The rule oflaw; (c) Fundamental human ri8hts and freedoms; (d) ... (e) ... (0 ... (c)... (h) Good govemance; and (i) ... (2) The principles of good governance, which bind the Stat€ and all instilutions and agencies of govemment at every l€vel, (a)... (b) ... (c),.. (d) ... include 1? 199s {3)SA 39r (Cc) para 9; seeako s 331ofthe connitution ofzimbabwe, whlch provldes as follows:"section 46 appl es, with any necess.ry changes, to the nterpretation ofthis Constltuuon:palt from Chapter 4." HH 264-2L Observance ofthe principle ofseparation of powers; Respect for the people of Zimbabwe, from whom the authority to govem is de ved; Tmnsparency, justice, accountability and responsiveness: (e) (f) G) (h) . The essenc€ of the constitutional supremacy doctdne, as distinct ftom parliahentary sbvereignty, is that the Constitution is the litmus test, the ultimate measure, by which the validity of any law, practice, custom or conduct is assessed. This aspect distinguishes constitutional supremacy fiom parliamentary supremacy or parliamentary sovereignty. Where the lafter system obtains, parliament is supreme, and any law that it passes cannot have its content questioned for validity, Zimbabwe is a constitutional democmcy in which the constitution is suEeme, and not a parliamentary democracy in which parliament is supreme, see Judicial Serrice Commissio v Zibani and 1thers.tg The pdnciple ofseparation ofpowers which is explicitly provided for in s 3 and guaranteed by the architecture ofour Constitution has in it that among the three arms of the State thejudiciary has the primary duty to interpret the law, see In Re: Prcsecutor-General of Zimbabwe on his Constitutional lhdepe dence and Protectiofifrotk Direction afid Conlrol.le Therefore, the exercise of determining what s 186 ofthe CorNtitution meaN in light of the provisions of s 328(7) falls squarely uirhin the mandare ofthe courts. The principles which are encapsulaled in the principle ofgood governance demand a new and different way ofdoing things from what may have been done in the past, hence the special mention of transparency, j ustice, accountability and responsiveness. This is the context in which the entrenchment of s 328(7) ofthe Constitution must be understood. The provision's purpose is, among the other important considemtions, to ensure that a persol who holds or occupies public office does so for a limited time, to prevent turn ing persons into institutions thereby compromising on the precepts enjoined in s 3 ofthe Constitution. Itisalso to ensure that a person who occupies or holds public office does not influence changes in the law in order to entrench his or her occupation ofthe public oflice by extending the length oftimethat he or she rcmains in thatoffice. With pa.rticular reference to jud icial olIicers, entrcnchment ofprovisioos relating to terms ofoffice for incumbedts ensures confidence in the judiciary by dispelling any suspicion that favours are 13 2017 (2)ZLR 114(Sl at Lt8G; see also Do.toBlol liJe tnternationol v speoks of the Notiohal Astenbly 200616l SA 416(CC)at para 38. 1' 2017 (1)ZrR 107(cclat 113D. H HA 264-27 being extended to them contrary to the provisions of the Constitution that would undermine the independence of the judiciary. As was held in the case of Justice Allia ce oJ South Africa v President ofthe Republic ofSouth Africa & Others: I "ln approacling this question it must be bome in mind that the extension of a tenn of office, particularly one confened by the Executive or Parliament, may beseen as a benefit. Thejudge or judges upon whom the benefit is confered may be seen as iavoured by it . . . The powerofextension in section 176(l ) must therefore, on general principle, be construed so far as is possible to minimize the risk that its conferral could be seen as impahing the precious won institutional attribute ofimpartiality and the public confidence that goes with ;r "m Public confidencc in the i[dcpendencc of the judiciary rvould be severely undermined if there was a beliefor even suspicion that thejudiciary or members thereofare, like nocturnal spooks acting under cover of darkness, knocking on the doors ofthe Executive and Legislative arms of government begging or lobbying for extension of their terms of office. This is the reason why there is need for certainty regarding the tenure of office ofjudicial officers in order to dispel any thinking that i, they behave in a certain way they might get the benefit of favourable constitutional amendments. In order to guard against subtraction from the founding values and principles, including the independence of the judiciary, the court must embmce substantive reasoning, an interpretive model which gives substance to those values and priDciples, and eschew legal sophistry which would result in na(owing down the meaning ofthese values. Further, the entrenchment ensures that ifthere is any change in the Constitution the effect of which is to extend the length of time that a person may hold or occupy public office such a change in the lnw mustbe subjected to the rigorous prccesses in s 328, which include areferendum. We point out that s 328 does not stop the legislature ftom amending the Constitution by extending term limits in general. Ifthe changes in tle Constitution do not have the effect ofextending the length of time that the incumbent may hold office they do not have to go through the rigorous processes required by s 328. However, ifthe effect ofsuch amendments is to extend the length of time that a person holds or occupies public office then they must be subjected to those entrenched processes. Section 328 has notbeen repealed bythe Constitutional Amendment. It must therefore be given eifect. Interpretation of sectiol 186 and 328 (7). 1r lunice Allionce ofSauth Alrica v Ptesident althe BepubicofSouth Altico ond athers, Freedon Under Low v Ptesident of the EepublX oJ Sot th Aiico ond Othe$, Centre Jor Applied Legol Studiet ond Anothet v Prcside nt ol the Republic of Scuth Africo ord O.f,ers 2011(5)SA 388(CC)at para 75. lnt1264-21 It is an established principle that sections ofthe constitution must not be read in isolation but must be read together and in the context ofthe whole text in order to give effect to the purpose and objective ofthe Constitution.2l In this case, the Bvo sections are not in conflict but must be read together and with the constitution as a whole. Section 328 which deals wirh amendment of the Constitr.ltion entrenches certain prcvisions. This entrenchment is by requiring, in addition to the usual procedure for passing an ame[dment to the Constitution, that such amendments be submitted to a referendum and get approval from a majority ofthe voters voting at the refercndum, One such provision which is entrenched is s 328 (7), which, as recited above, provides the lollo\\,ingl '17) Notwithstanding any olherprovision ofthis section, an amendmentto aterm-limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation io any person who held or occupied that office, or an equivalent oflce, at any time before the amendment." The Constitution ofZimbabwe Amendment (No. 2) 2021 amends s 186 ofthe Constirution through its s l3. The Constitution in s 332 defines the term "amend" to include "vary, alter, modiry, add to, delete or adapt". In this instance the existing s 186 was repealed and subsrituted with a new s 186. This is an amendment. [n order to determine whether or not the amendment is one that falls within the ambit of s 328(7) two requirements must be satisfied - namely (a) it must be an amendment to a term limit, and (b) it must have the ellect ofextending the lenglh of time thal apersonmayholdoroccupyapublicollice.'Effect'simplymeansresult,consequenceorimpact, irrespective ofthe expressed purpose ofthe amendment, Once it satisfies these two requirements then such an amendment is excluded from applying to "any person who held or occupied that office, or an equivalent ofTice, at any time before the amendment." The reference to an "equivalent office" is no doubt mcant to deal with a situation where an amendment might seek to rename or reconfigure what is essentially the same office in order to escape the consequences of s 128(7), thereby extendjng a person's stay ir office. There can be no question thatjudges occupy public office. There was debate as to whether s 186 is a tenn-limit provision which has the elfect of extending the length of time that the second respondent and the other judges of the Conslitutional Couft and Supreme Cout may hold or oc.upy office. The respondents contended that it was not a term-limit provision. The submission 1\ fsvongioi v Mugobe & Olhers 2017 (2)ZLR 1(CClat9C. HA264.11. was that the only term limit which is contained in s 186 is one that is contained in subsection (2), which states lhat "Judges of the Constitutional Court are appointed for a non-renewable term of no1 more than fifteen years". Their argument was that the retirement age stipulated does not limit the term ofofaice ofthejudges. This argument means thatjudges ofthe Supreme Coun and High Court have no term limit. That argument is not sustainable. Section 328(1) defines ,term-lirnit provision" to mean "a p(ovision ofthis Constitution which limits the length of time that a person may hold or occupy a public office". We therefore come to the conclusion that s 186 is a term limit provision and that it has the effect of ext(nding the lcDgth of time that a person may hold the office of judgc of the Constitutjonal Court and Supreme Coull. It increases the retirement age of the judges i[ these courts from the original T0 to 75 years. The fact that this extension ofthe tenure ofoffice is subject to election by the concemed judge and acceptance by the President after consultation with the Judicial Service Commission and production ofa medical report does not change its nature as an extension ofa term limit. In respect ofthejudge ofthe Constitutional Court, the term limit is based on two dimensions, namely, (i) the period of 15 years which is provided in section 186, aod (ii) the age ofthe irffectedjudge. It is clear that whichever ofthese 2 occurs first terminates the tenure ofthe judge. This is what is generally refered to as a hybrid tenure arrangement.22 There are thus three types of valid tenure arrangements in use generally the world over: Life limits (when on€ dies), age limits (when one ieaches a specified retirement age), and a fixed term Iimit (when a specified period ofservice is reached). These three tenure arangements are contained in s 186 of the Constitution ofzimbabwe. Tenure has to do with term ofoffice; term of office has to do with time. Both fixed term (fixed time), and age-based term (age-based time), have to do with time. Time is the unclerlying factor in both ofthem. Therefore, the inescapable conclusion is that varying retirement age is varying term limits. ln respcct of Suprcme Courtjudges, the tenure ofoffice is defined by age only. Thus, for instance, a Corstitutional Courtjudge who is aged 70 years at the time of his or her appointment has his or her lerm limited to only five years. That term limit is defined by his or her age. He or she must relire upon tuming seventy-five years after serving for only five years. On the other hand, ajudge ofthe same court who is fifty years old at the time ofhis or her appointment has his ?'zBriEn Opeskin, Models ofJudicialTenure: Reconsidering Life Limits, Age Limits and Term Limits forJudBeJ' Aiatd Jaumalol LegaiStudler Vol.35, No.4 (Winter 201s) pp.627-563 HH 264-21 orherterm defined bytheperiod of fifteen years. Thejudge retires from rhe Constiturional Coun at the age of sixty-five years. On the other hand, a judge of the Supreme Court under the new amendment retires at the age ofseventy-five years irrespective ofhow many years he has served on that bench. That s 186 is a termJimit provision, and that it is concemed with extending the length of time thatjudges ofthe Constitutional Court al1d the Supreme Court hold or occupy public office, is also evident from the provisions ofs 186 (4). This provision explicitly refers to s 328 (7). This reference to s 328(7) would be rendered superfluous or nugatory if, as suggested by the respoDdents, it is found that s 186 is not a term-limit provision. The respoDdents have not suggested why the legislature would engage in a superlluous exercise, especially in light of the presumption against superfluity in the interpretation ofstatutes, Also, in the affidavits filed in this court, the respondents refened to its effect as extending the term of office.23 The submission made on behalf ofthe respondents reads the reference to the fifteen years in isolation ftom the rest of subsection (2) of s 186. That is the approach to interpretation which must be discarded. The case ofJustice Allidnce ofsouth Africa v President ofthe Republic ofso th Afiica & Olhe$ whi.hhas been referred to by both the applicants and rcspondents also confirmsthatage can, and does, indeed define and can be used to extend a term ofoffice, as has happened following the enactment ofs 186: "lr follows lhat in exercising the power to extend the tenn of office of a CoDstitutional Cou( Judge, Padiament may not single out the Chief Justice . . . Age is an indifferent criterion tbat may be applied in extending thc t€rm of office ofa CotrstitutioDal Court Judgc. :' lEmphasi.addcdl. Section 186(4) and s 328(7) can be read together. In our conclusion, section 186 (4) does not apply to the person ofthe second respondent and the other persons \,r'ho were judges of the Constitutional Court prio! to the amendment. It also does not apply to the persons who were judges ofthe Supreme Court. This is because these are persons rvho fall within the ambit of s 328(7) in that they held or oocupied the public office prior to and at the time if the amehdment of the Constitution. Consistent with the hallowed principle of interpretation which avoids an interpretation which results in a conflict in constitutional provisions, we come to the conclusion rr See paras 25.a (b) and (c)ofthe nineteenth respondent's opposing effidavit in HC 212a/2f. JusticeAllionce al South Africo v Prcsidentofthe Republicol South Africo ond Othets, Freedom UnderLowv 'a Ptesident ol the Republic oJ South Alrico ond Others, Centte lot Applied Legdl Studies and Anothet v *esldent oJ the Republic oJ south Africo and Others 2Oa1l5l SA 388(CC) at para 91. HH 254-27 that section 186 (4) does not apply to the judges ofthe Constitutional Court and Supreme court who held offrce before the amendment. There is no confusion which results from the wording ofs 186 (4). It says that the section shallapply 10 the continuation in office ofthe ChiefJustice, Deputy ChiefJustice, judges of the Constitutional Court and judges ofthe Supreme Court. This means it rvould apply to the continuation ofthe mentioned public officer other than those who werejudges bEfore the amendment. The provision mentions offices rather than the persons occupying them, Section 186(4) must therefore be undeNtood as applicable to persons who are appointed to the named ofTices subsequent to the amendment. It does not mention ,pe$ons,, and does not state that the persons who wete in office prior to the amendment would benefit frolrl it. Iiit did so this would put it in conflict with the express provisions of s 328(4, and its constitutionality would be in question given that it \\,as not submitted to a national referendum. On the other hand, an interpretation that excuses the persons who held public office as judges ofthe Constitutional and Supreme Courts prior to the amendment from the ambit ofs 328(7) would reduce the Constitution to a wooden iron, because any person who already holds or occupies public offlce can easily causo their term of office to be lengthened by enactment of a provision similar to s 186(4) thereby perpetuating the mischief which was meant to be addressed by the entrenchment ols 328- The status of Honourable Justice Malaba. It is common cause that the Honourable Justice Malaba is the oflly judge of the Constitutional Court who has tumed 70. At the time that the applications were filed, he had not lurned 70. He turned 70 years old on 15 May 2021. The applications were filed following indications that he might or would benefit from the new section 186 ofthe Constitution by having his tenure ofolTice extended by another 5 years. The respondents in their opposing affidavits have referred to a letter dated ll May 2021by which his tenure was to be extended with effect lrom l6 May 2021 . In vieu ofthc conclusion we have reached, Honourable, Justice Luke Malaba ceased to be ajudge ofthe Constitutional Court and Supreme Cou( at 0000hours on 15 May 2021 when he turned 70 years. Equally, he ceased to be the ChiefJustice of the Republic ofzimbabwe at that time. Nothing tums on the letter of ll May202l. when it was witten that was the same day that the application was filed. Theletterofll May202l was intended to take effect only on 16May 2021, on which date the then incumbent would have ceased to be ajudge some twenty-foui hours earlier. An absurd situation, which neitherthe Executive nor the Legislature would have intended, HH 264-11 would have resulted whereby the country would be without a ChiefJustice for the period of 24 hours, between 0000hourson l5 May 2021 and 0000 hours on 16May2021. There would have been nothing to extend since he would have ceased to be ajudge and ChiefJustice ofZimbabwe. Thus, any purported extension of the second respondent's occupation of the office ofjudge or ChiefJustice remains a nullity because there was nothing to extend once he ceased to be ajudge at the inception of 15 May 2021. This is so whether the extension is said to have begn constituted by his election to remain in oflice or by the letter of I I May 2021 . The celebrated statement in the.ase of MdcFoy v tlhited Africa Co. Ltd decidedly seals the effect of that letter: ''Ifan act is void, then i1 is iD law a nullily. Il is not only bad, but incurably bad . . . And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. lt will collapse."zs ln the case of Muchakata v Nelherburn Mine lhe Supreme Court ofzimbabwe (Per KoRSAH JA) said that ifan act is void a, ,rrro it is "void at alltimes and for all purposes. It does not matler when and by whom the issue ofits validity is raised; lothing can depend on it",26In making these observations, we are mindful ofthe fact that the two applications were not based on the letter of 11May 2021. That letter was produced irl opposing papers. Our conclusion is that the letter does not affect the conclusions which we have reached based upon an interpretation ofthe constitutional provisions considered above. The position of the other iudses of the Constitutional Court and Supreme Court. The effect ofthe conclusion reached above is that the persons who occupied the positions ofjudges ofthe Constitutional and Supreme Courts prior ro the amendment cannot have their term in office extended beyond the age of 70 years based on section 186 ofthe Constitution as presently rvorded. This is because they held or occr.rpied the concemed office before the amendment introduced by s 13 ofthe Constitution ofZimbabwe Amendment CNo. 2), 2021. We point out, however, that actingjudges be they in the Constitutional Court or Supreme Court are not affected by the provisions of s 328 (7) as read with s 186 of the Constitution. These include the fourth to fourteenth and the eighteenth respondents in so far as they have been acting Constitutional Courtjudges as well as the fifteenth, sixteenth and seventeenth lespondents in case no. Hc2l28/21 in so far as they are substantive High Court judges who have been acting as 's [1961]I A ER 1169 ar 1172t. ,61996 (1)ZLR 1s3 (S)at 1s78. Constitutional Court and/or Supreme Court judges. There is no extension to the length of their HH164-1? term in office since they arejust actingjudges. The riolations ofthe applicants' rishts. The applicants in both applications allege that the continued occupation ofpublic office as judge and/or ChiefJustice ofZimbabwe by the second respondent would violatetheir fundamental rights enshrined in s 56(l) and s 69(3) ofthe Constitution. The parties accepted that the reference to s 69(4) in the draft order inHC 2166121was an erro., the correct and intended citation being s 6e(3). Secrioll 56tl) pro\ ides as follor\s: "All persons are equal before the law and have the righ! to equal protection and benefit of the law," Seclion 6qfJ) provides as follows: "Every person has the rigit of access to the courts, or to some oiher tribunal or forum established by law for the resolution ofany dispute." This court is concemed with substantive equality and equai protection and benefit ofthe law rather than formal equality. In the case of Malaarirc v Mugabe NO & Others, supra, the applicant alleged violationof, inter alia,s l8(l ) ofthe old Constitution which provided as follows: "Subject to the provisions of this Constitution, every person is entitled to tle protection of the law." The Cout came ro the conclusion that the failure to pedorm a constitutional duty violated the applicant's fundamenlal right as protected by s 18 ofthe Constitution.'7 Section 56(t) ofthe Constitution ofZimbabwe 2013 is wider in i1s scope than s l8 ofthe old Constitution. Itqualifies the protection ofthe law with the word "equal"; it also adds the entitlement to "equal benefit" of the law which was not there in the old Constitution. We conclude that the contilued occupation by the second respondent ofthe offices ofjudge and ChiefJustice after he has tumed seventy years old violates the applicants' right as ensh.ined in s 56(l) of the Constitution. The applicants are entitled to protection and benefit ofthe law in the sense ofhaving public office occupied in accordance with and not in violation ofthe provisions ofthe Constitution. The applicants are therefore entitled to the declaratory reliefwhich they seek. The second violation of fundamental rights alleged by the applicants in Case No. HC 2166121 is of s 69(3) of the Constitution.28 It has been held that the right of access to courts is Mowatire v Mugobe NO & othec, suprd, p.4a6F. '11 'zs Para 9(a) ofthe affidavit of Emma Kate Drury. HH20.-11. essential for constitutionaldemocracy and tle rule of law.2e ln the case of Bernstein v Bester No 1996 (2) SA 751(CC) para 105, the pulpose of the right of access to courts was explained by the Constitutional Court ofSouth Africa as: "to emphasise and prolect generally, bu1 also specifically lor the proteciion of the individual, lhe separation of powers, particularly the separation of the judiciary fiom the other arms ofthe state, . . (It) achieves this by ensuring thatthe courts and other fora which settle justiciable disputes are independent and impartial. It is a p.ovision fundamental to the upholding ofthe rule of law, the constitutional stale, lie 're4staatidee', for it prevents legislatures at whatever level, from luming themselves by acls of legerdemain into 'co]]Its' . . . By constitutionalizing the requirements ofindependence and impartiality the section places the nature ofthe courls or other adjudicating fom beyond debate . . ." . We respectfully endorse the above exposition ofthe law. Both the separation ofpowers principle and the rule of law are enshdned in s 3 ofthe Constitution. The essence ofthe rule of law is that any person may challenge the legality ofany law, conduct, practice etc in a sepltate, impartial and independent court or other forum, one that is frce from the control ofthe perpetrator of the illegality, Currie & de Waal, The Bilt of Rights Handbook 6s ed., p. 7l l. If a sitting judge can have his or her term ofoffice extended by amendment ofthe C onstitution j u st one week before he or she is due to retire, orjudicial officers have tleir age limit extended contrary to the express provisions ofthe Constitution which prevent incumbents from having terms of office extended for them $hile they are in office, questions will reasonably abound as to the extent to Nhich the Court can be independent. The intended extension ofthe leflgth of time that the persons in office as judges ofthe Constitutional Court and Supreme Couft, do have lhe effect ofcompromising on the independence ofthe judiciary and the rule of law. Significantly, the election to continue in office introduced by s 186 (l), (2) and (3) is not an automatic guarantee that thejudge concemed will contirue in ollice. It is subject to acceptance by the President. It is not guaranteed This has the effect ofsubjecting the teIm ofoffice (or extension thereoo to the control ofthe Executive. Ifany extension is to be afforded 1o the second to lourteenth and the eighteenth respondents then there would be violation ofthe applicants' righl as Protected by s 69(3). This is so given the conclusion that we have reached that such extension contemplated by s 186 does not apply to persons who were in office as judges belore the amendment 2eRoodAccidentFundvMdeyide201112)sa26lcc)paras1and;D€aeerlvovNotth-centolLocdlCouncilond south-cental Lacal Council2002 (1)sA429{cc) para 11 HH 264-21 Conclusion- Our conclusion is that the extension ofthe retirement age amounts to extension oftenure. Tenure is defined by both the fixed time and the stipulated retirement ages. In terms of s 328 (7) of the constitution, such an extension of tenure is an amendment to the Constitution. It cannot benefit the persons who held or occupied the office at afly time before the amendment. Any extelsion of the length of time that persons who were judges of the Constitutional Court and Supreme Court prior to the amendment of s 186 through the Constitution of Zimbabwe Amendment CNo. 2), 2021 would be a violation ofthe applicants' rights as protected by s 56(l) and s 69(3) ofthe Coustitution ofZimbabwe, Costs, We consider that the issues raised in these two matters are ofnational importance. They relate to the interpretation of provisions ofthe Constitution and how those provisions affect the persons who werejudges of the Constitutional Court and Supreme Court before the amerdment which triggered the filing ofthe applications. For these reasons, in accordance with the approach ofthe coluts in matters ofthis nature, we do not believe that any ofthe parties should be ordered to pay costs. Disposition. ln the result, \\,e make the following order: IT IS DECLARED THAT: 1. The second respondent in HC 2128/21who is also the second respondent in HC 2166121 ceased to hold the ofiice of the Chief Justice ofZimbabwe and judge by operation of law on I5 May 2021 at 0400 hours. 2. The extension ofthe lenglh oftime in the office ofthejudge beyond the age of70 years provided for in section 186 ofthe constitution does not apply to the second to lburteenth and the eighteenth respondents. J. I here :hall be no order as to costs. r/?za-=^_ CHAREWA J MUSHoRE J HH 264-21 Zmbabwe ltunan Rights NGO Forun, applicurt's legal practitioners inHC 2128121 Honey & Blanckenberg,legal practitioners for the applicants in HC 2166121 Kaktor & Innemlan,legal practitioners for the 2nd to l9d respondents in HC 2128/21 and for the l't and 2nd respondents inHC 216612l Ciyil Divisio of the Altorney-General's ffice, legal practitioners for the l"t respondent in HC fot the 3td respondent in HC 2166/21 ':nd Ml/--"..,_