Online Reporter
Trust Maanda
Legal Position
IT is not every case that one can seek redress via the avenue of enforcement of the Constitution.
Courts do not resort to the use and application of the Constitution where and when a litigant may obtain redress by use of other laws.
This is what is known as the doctrine of constitutional avoidance.
In terms of this doctrine, the Constitutional Court, for example will not interfere in unterminated proceedings in a lower court, where there are proceedings pending in a lower court, wherein the applicant may obtain relief in that court which he intends to obtain in the Constitutional Court by raising a constitutional matter.
The court will only deal with a constitutional issue where the remedy sought by the applicant is solely dependent upon the determination of that constitutional issue.
In Chawira and Ors v Minister of Justice and Ors, the Court explained the concept as follows: “Zimbabwe operates a self-correcting hierarchical judicial system where in the ordinary run of things cases start from the lower courts progressing to the highest court of the land.
“Generally speaking, higher courts are loathe to intervene in unterminated proceedings within the jurisdiction of the lower courts, tribunals or administrative authorities.”
A party cannot seek a referral of a constitutional matter to the Constitutional Court when there are proceedings pending in the lower court in terms of which he or she can obtain the same remedy which he or she intends to seek before the Constitutional Court.
Where such a request is made, the judicial officer declines to grant such request on the basis of the doctrine of avoidance.
Allied to the doctrine of constitutional avoidance is the principle of subsidiarity.
The principle of subsidiarity states that a person who alleges that a right protected by the Constitution has been infringed must rely on legislation enacted to protect that right, and may not rely on the underlying constitutional provision directly when bringing an action to protect the right.
He or she can only rely on a constitutional provision if he or she wishes to attack the constitutional validity of the legislation itself.
On the basis of this principle, it is understood that there are many disputes of right or interest which do not give rise to constitutional matters. It determines the route to be taken for the protection of the rights allegedly violated.
For example, where an Act of Parliament provides one with access to a right, a person has to pursue the avenues in that Act for the enjoyment of that right.
He must not go to the court using the Constitution to seek protection of that right, when the statute provides the avenue for seeking and obtaining that right. For example, if a statute provides for how one must seek enjoyment of that right, a person must purse that remedy rather than seek the application of the constitution. The right in the constitution would have given effect to by the Act of Parliament made under it.
In Magurure v Cargo Carriers International Hauliers (Pvt) Ltd (supra) the Court explained the principle as follows at Page 9:
“The principle of subsidiarity is based on the concept of one-system-of-law. Whilst the Constitution is the supreme law of the land, it is not separate from the rest of the laws. The principles of constitutional consistency and validity underscore the fact that the Constitution sets the standard with which every other law authorised by it must conform.
“The Constitution lays out basic rights and it is up to legislation to give effect to them. This is the nature of the symbiotic relationship between the Constitution and legislation. The legal system is one, wholesome and indivisible.”
A litigant must first rely on legislation enacted to protect that right, and not rely on the underlying constitutional provision directly when bringing an action to protect the right unless it is it is shown that the litigant intends to attack the constitutional validity or efficacy of the legislation itself.
When that happens, a constitutional matter would have arisen. A constitutional matter arises when there is an alleged infringement of a constitutional provision.
It does not arise where the conduct the legality of which is challenged is covered by a law of general application the validity of which is not impugned.
In Mazibuko and Others v City of Johannesburg and Others 2010(4)SA 1(CC), the principle is set out as follows:
“Where legislation has been enacted to give effect to a right, a litigant should rely on that legislation in order to give effect to the right or alternatively challenge the legislation as being inconsistent with the Constitution.”
A person may not bypass that legislation and rely directly on the Constitution without challenging that legislation as being constitutionally invalid.
Trust Maandsa is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646
