NDLOVU v MANWERE NO & ANOTHER (79 of 2026) [2026] ZWHHC 41 (28 January 2026)

3 HH 79-26 HCHB 2125/23 LINDIWE NDLOVU versus ESQUIRE MANWERE T N.O and THE STATE HIGH COURT OF ZIMBABWE **TAKUVA J** HARARE, 1 July 2025 and 28 January 2026 **Court Application for review** _P. B Saurombe, R Chibwe_ , for the applicant No appearance for the 1st respondent _R Chikosha_ , for the 2nd respondent **TAKUVA J:** This is an application for review based on the following grounds; 1. The first Respondents decision to make a finding that the application for referral is fatally defective because there was no viva voce evidence led on an application that was predicated on a point of law is grossly unreasonable such that no judicial officer acting on the same facts and circumstances would have arrived at the same decision 2. The decision by the first Respondent to make finding that the application is fatally defective but then went on to determine the merits of the same application that he ruled was fatally defective is grossly unreasonable such that no other judicial officer acting on the same facts and circumstances would have arrived at the same decision. 3. The decision by the first Respondent finding that the application for referral was frivolous and vexatious when the same court a quo had in an earlier ruling of the 18th of November 2022 established the Constitutional conundrum between section 70(1) (I) of the Constitution and section 17 of the Interpretation Act amounts to the court a quo reviewing its own decision and is grossly unreasonable such that no other judicial officer acting on the same facts and circumstances would have arrived at the same decision. 4. The decision of the first Respondent to make a finding that the application for referral is frivolous and vexatious on the basis of reading the provisions of section 70(1) (k) of the Constitution into section 70 (1) (I) is grossly unreasonable such that no other judicial officer acting on the same facts and circumstances would have arrived at the same decision. 5. The decision of the first Respondent to make a finding that the application for referral is frivolous and vexatious by answering the question that the applicant wants referred to the Constitutional Court when the court _a quo_ does not have the power to answer that question is grossly unreasonable such that no other judicial officer acting on the same facts and circumstances would have arrived at the same decision. _**Background Facts**_ The applicant was arrested on 31 March 2022 and made his initial appearance before the Rotten Row Magistrates’ Court on 1 April 2022, where he was placed on remand on a charge of deliberate transmission of HIV, allegedly committed in contravention of section 79 of the Criminal Law (Codification and Reform) Act [_Chapter 9:23_]. The State alleges that, during the period extending from March 2021 to November 2021 at Phase 6 Eastview, the applicant unlawfully infected the complainant with HIV, knowing that he was infected with the virus or realising that there was a real risk or possibility of such transmission.On 27 May 2022, the Marriages Act [Chapter 5:15] came into operation. In terms of section 54(2) thereof, section 79 of the Criminal Law (Codification and Reform) Act, under which the applicant had been charged, was repealed. Consequent upon the repeal of the offence-creating provision, the applicant, on 2 August 2022, applied for the quashing of the charges against him on the basis that, in terms of section 70(1)(l) of the Constitution of Zimbabwe, 2013, he could not lawfully be convicted of an act or omission that was no longer an offence.By a ruling delivered on 18 November 2022, the magistrates’ court dismissed that application, holding that section 17 of the Interpretation Act permitted the continued prosecution of offences notwithstanding the repeal of the relevant statutory provision. Aggrieved by that decision, the applicant, on 9 February 2023, lodged an application in terms of section 175(4) of the Constitution for the referral of constitutional questions to the Constitutional Court. The questions concerned, first, the validity of section 17(1)(d) and (e) of the Interpretation Act to the extent that it permits prosecution based on repealed enactments, and secondly, whether the applicant’s continued prosecution violated his right under section 70(1)(l) of the Constitution. The second respondent opposed the application, contending, _inter alia_ , that no _viva voce_ evidence had been led and that the application was frivolous and vexatious. After hearing the parties, the first respondent dismissed the application for referral, finding that it was fatally defective and frivolous and vexatious. The present proceedings are a review of that decision dismissing the application for referral to the Constitutional Court. _**Issues for determination**_ 1. Whether the magistrates’ court misdirected itself in holding that the applicant’s application for referral to the Constitutional Court was fatally defective for want of _viva voce_ evidence. 2. Whether, having found the application to be fatally defective, the magistrates’ court was entitled to proceed to determine the merits of the application and to characterise it as frivolous and vexatious. 3. Whether the magistrates’ court exceeded its jurisdiction by determining constitutional questions which it was only empowered, in terms of section 175 of the Constitution, to refer to the Constitutional Court. 4. Whether the decision to refuse the referral was so grossly unreasonable and irregular as to warrant interference by this Court on review. _**Analysis**_ 1. **Whether the application for referral was fatally defective for want of viva voce evidence** The court _a quo_ found that the application for referral was fatally defective on the basis that the applicant had not led _viva voce_ evidence. That finding in my view, discloses a material misdirection. The application for referral was predicated purely on a point of law, namely the alleged conflict between section 17(1)(d) and (e) of the Interpretation Act and section 70(1)(l) of the Constitution. The material facts were common cause and were not in dispute. The only issue was the proper interpretation and interaction of statutory and constitutional provisions. The Constitutional Court has authoritatively stated that evidence is required to establish facts and not the law. In _Fredrick Charles Matanda_ v _Prosecutor-General_ CCZ 1/17, Chidyausiku CJ stated: “I have serious reservations regarding the correctness of this conclusion. The law is the law. There is no need to hear evidence to establish the law. In any trial, evidence is required to establish facts and not the law. A trial court can hear submissions from counsel on what the law is, but it cannot seek to hear evidence to determine what the law is except in instances where the court seeks to establish foreign law, in which case evidence on foreign law from experts is admissible.” In the present matter, no factual controversy required resolution through oral evidence. The referral application arose directly from the ruling of 18 November 2022 and raised a legal question apparent _ex facie_ the record. In those circumstances, the absence of _viva voce_ evidence could not render the application fatally defective. An affidavit supporting an application founded on a point of law constitutes sufficient evidential foundation. The court _a quo_ accordingly misdirected itself in holding that the application was fatally defective on that basis. 2. **Whether the court** _**a quo**_**was entitled, having found the application fatally defective, to proceed to determine the merits** Having found that the application was fatally defective, the court _a quo_ nevertheless proceeded to consider the merits and to pronounce that the application was frivolous and vexatious. This approach is internally contradictory and legally untenable. A finding that an application is fatally defective necessarily means that there is no valid application before the court. A fatal defect is one that is incurable and terminates the proceedings. Once such a finding is made, the court becomes _functus officio_ in respect of the merits. The fact that the court _a quo_ proceeded to determine the merits is itself demonstrative that the application was not, in truth, fatally defective. As submitted for the applicant, a dead application cannot be adjudicated upon. By purporting both to strike down the application as fatally defective and simultaneously to determine its merits, the court a quo committed a gross procedural irregularity. 3. **Whether the court** _**a quo**_**exceeded its jurisdiction by determining constitutional questions** The referral application arose from the ruling of 18 November 2022 in which the court _a quo_ itself identified a tension between section 17 of the Interpretation Act and section 70(1)(l) of the Constitution. Once such a constitutional question arises in criminal proceedings, the function of the trial court is circumscribed by section 175 of the Constitution. The court is required to determine whether the question is frivolous or vexatious and, if not, to refer it to the Constitutional Court. It is not empowered to determine the constitutional validity of the impugned provision. In the present matter, instead of confining itself to the threshold enquiry, the court a quo proceeded to interpret section 70(1)(l) by reading into it section 70(1)(k), and to uphold the validity of section 17 of the Interpretation Act. In doing so, it effectively assumed the role of the Constitutional Court. This constituted a usurpation of jurisdiction. In _Nyagura_ v _Lanzani Ncube N.O. & Ors_ (CCZ 7 of 2019; Constitutional Application CCZ 53 of 2018) it was stated by Malaba CJ that; “Section 175(4) of the Constitution does not authorise a subordinate court to determine the constitutional matter on the merits … The determination of a constitutional matter by a subordinate court on the merits is not authorised by section 175(4) but rather is done on the basis of some other law. … The purpose of the exercise of the jurisdiction under s 175(4) alone is to decide whether a request for referral to the Constitutional Court is merely frivolous or vexatious.” To put this in simple terms, a subordinate court is a gatekeeper, not a decision-maker in constitutional matters. If a trial court interprets the Constitution and upholds the validity of the impugned provision then it has assumed the role of the Constitutional Court, and usurped jurisdiction reserved for the apex court. This violates the constitutional separation of functions. By answering the very questions framed for referral, the court a quo exceeded its constitutional mandate. 4. **Whether the application was frivolous and vexatious** The test for determining whether an application is frivolous and vexatious is well settled. In _Martin v Attorney-General_ 1993 (1) ZLR 153 (S), Gubbay CJ stated, “In the context of s 24(2), the word ‘frivolous’ connotes, in its ordinary and natural meaning, the raising of a question marked by a lack of seriousness; one inconsistent with logic and good sense, and clearly so groundless and devoid of merit that a prudent person could not possibly expect to obtain relief from it. The word ‘vexatious’, in contra-distinction, is used in the sense of the question being put forward for the purpose of causing annoyance to the opposing party in the full appreciation that it cannot succeed; it is not raised bona fide and a referral would be to permit the opponent to be vexed under a form of legal process that was baseless …” Similarly, in _Marie Storm Gillespie_ v _Msema_ HB 149/18, Mathonsi J held that a matter is frivolous if it is obviously unsustainable and without foundation. Measured against these standards, the applicant’s referral application cannot properly be characterised as frivolous or vexatious. Firstly, the constitutional question arose directly from the ruling of the court a quo itself on 18 November 2022, which acknowledged the operation of section 17 of the Interpretation Act against the apparent protection afforded by section 70(1)(l) of the Constitution. Secondly, the question concerned the continued prosecution of an accused person under a repealed penal provision, a matter implicating the core criminal justice guarantee against retrospective criminal liability. Thirdly, the court a quo was compelled to embark upon an extended constitutional analysis in order to dismiss the application. That alone is inconsistent with a finding that the matter was hopeless or devoid of merit. As was emphasised in Munhumeso (supra), where the effect of legislation may abridge a fundamental freedom, the question is inherently serious and deserving of constitutional scrutiny. In the result, the characterisation of the application as frivolous and vexatious was not supported by the facts or the law and constitutes a misdirection. _**Conclusion**_ The court _a quo_ materially misdirected itself in holding that the application for referral to the Constitutional Court was fatally defective for want of _viva voce_ evidence, notwithstanding that the application was founded purely on a point of law and that the material facts were common cause. Having made a finding of fatal defect, the court _a quo_ further erred in proceeding to determine the merits of the application. That approach was internally contradictory and constituted a gross procedural irregularity. The court _a quo_ further exceeded its jurisdiction by purporting to determine constitutional questions which it was only empowered, in terms of section 175 of the Constitution, to refer to the Constitutional Court. Finally, the characterisation of the application as frivolous and vexatious was not supported by the established legal tests or by the record, and accordingly amounted to a misdirection. In the result, the decision of the court _a quo_ is vitiated by material irregularities and cannot be permitted to stand. It is accordingly ordered that; 1\. Application for review be and is hereby granted. 2\. The first Respondent's decision be and is hereby set aside 3\. There is no order as to costs. **Takuva J:…………………………..** _Zimbabwe Lawyers for Human Rights_ , applicant’s legal practitioners _National Prosecuting Authority Harare_ , second respondent’s legal practitioners