Nkomo and Another v. Attorney General of Zimbabwe and Others

NKOMO AND ANOTHER v ATTORNEY-GENERAL, ZIMBABWE,
AND OTHERS 1994 (3) SA 34 (ZS)
ZIMBABWE SUPREME COURT
GUBBAY CJ, McNALLY JA, KORSAH JA, EBRAHIM JA and
MUCHECHETEREJA
1993 November 10; December 10
Case No 187/93

Flynote

Criminal procedure - Sentence - Death sentence - Execution of - Right of condemned person to approach Supreme Court, before President having decided petition for clemency, for an order declaring that execution of sentence would constitute inhuman or degrading punishment in contravention of s 15(l) of Declaration of Rights in Constitution of Zimbabwe - Condemned person not required first to exhaust other remedies.

Criminal procedure - Sentence - Death sentence - Execution of - Whether execution of death sentence a breach of fundamental rights - Effect of amendment of Declaration of Rights in Constitution of Zimbabwe brought about by Constitution of Zimbabwe Amendment (No 13) Act 1993 - Pre-existing rights of condemned persons to obtain relief for a violation of s 15(l) of Declaration of Rights not extinguished by amendment.

Constitutional law - Human rights - Specific rights - Right not to be subjected to torture or inhuman or degrading punishment of treatment - Constitution of Zimbabwe, s 15(l) - Whether execution of death sentence a breach of fundamental rights - Effect of amendment of Declaration of Rights in Constitution brought about by Constitution of Zimbabwe Amendment (No 13) Act 1993 (Z) - Amendment providing that delay in execution of death sentence not a contravention of s 15(I) and that amended provision applicable to persons already under sentence of death - Pre-existing rights of condemned persons to obtain relief for a violation of s 15(l) of Declaration of Rights not extinguished by amendment.

Headnote

In November 1988 the two applicants were convicted of murder and sentenced to death. In August 1993 their appeal against the conviction was dismissed and the appeal against sentence of death was postponed to allow argument to be addressed to the Court on the question of whether the sentence should not be altered to life imprisonment. The applicants then applied for an order declaring that execution of the death sentence would constitute inhuman or degrading punishment in contravention of s 15(l) of the Declaration of Rights in the Constitution as they had been incarcerated on death row for 57 months. After the lodging of the application but before it was heard by the Court, the Constitution of Zimbabwe Amendment (No 13) Act 1993 (Z) was passed and came into effect on 5 November 1993.

The Court considered, firstly, whether the fact that a petition for clemency, which had been made to the President on 17 November 1992, had not yet been determined, was a bar to the present relief The Court held that s 24(4) of the Constitution vested extraordinarily wide powers in the Supreme Court to redress a contravention of a fundamental right or freedom of an individual and even where other adequate means of redress were open to the aggrieved complainant the Supreme Court was not obliged to decline to exercise its powers.

Subsections (5) and (6) of the amended s 15 provided as follows:

'(5)Delay in the execution of a sentence of death, imposed upon a person in respect of a criminal offence of which he has been convicted, shall not be held to be a contravention of ss (1).

(6)A person upon whom any sentence has been imposed by a competent court, whether before, on, or after the date of commencement of the Constitution of Zimbabwe Amendment (No 13) Act 1993, in respect of a criminal offence of which he has been convicted, shall not be entitled to a stay, alteration or remission of sentence on the ground that, since the sentence was imposed, there has been a contravention of ss (1).'

The Court held, per Gubbay CJ, McNally JA, Korsah JA and Ebrahim JA concurring; Muchechetere JA dissenting, that it could not be said that the effect of s 15(5) was, by necessary implication, expressed to be back-dated to destroy the vital fundamental right to obtain the substitution of a sentence of life imprisonment for that of death, that vested as soon as the delay in carrying it out became inordinate. (At 41J-42A/B.) The Court held further that in order to ascribe a sensible meaning to ss (5) and to avoid superfluity, the words 'any sentence' in s 15(6) has to be read as excluding the sentence of death for which provision had specifically been made in ss (5). (At 42F-G.)

The Court held accordingly that the pre-existing right of the applicants to obtain relief for a violation of s 15(l) remained unaffected by the Amendment Act (at 43D) and for the reasons set out in the decision in Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General, Zimbabwe, and Others 1993 (4) SA 239 (ZS) (1993 (2) SACR 432) the sentences of death were set aside and replaced with sentences of life imprisonment. (At 43F/G-G/H read with 351/J-J.)

Case Information

Application for an order declaring that the execution of sentences of death imposed on the applicants would constitute a violation of s 15(l) of the Constitution of Zimbabwe. The facts appear from the judgment of Gubbay CJ.

A P de Bourbon SC for the applicants at the request of the Court.

A V M Chikumira (with him B Patel) for the respondents.

Cur adv vult.

Postea (10 December 1993).

JUDGMENT

Gubbay CJ:

The chronology

On 17 November 1988, the two applicants were convicted of murder with an actual intention to kill, and were sentenced to death. It was proved that on 17 April 1988, they had beaten Gideon Ncube to death with an iron bar and placed his body down a disused well. The motive for this brutal killing was that the applicants believed that the deceased would be able to identify them as having stolen part of a crop of potatoes from a nearby farm a few days previously. He was, therefore, lured away on the pretext of searching for honey, and disposed of.

The appeal brought by the applicants' conviction was dismissed on 30 August 1993. Notwithstanding confirmation of the finding made by the trial Court that no extenuating circumstances existed, this Court decided to adjourn the appeal against sentence of death to allow argument to be addressed on the question of whether, for the reasons pronounced by the Constitutional Bench of this Court in Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General, Zimbabwe, and Others 1993 (4) SA 239 (ZS) (1993 (2) SACR 432), it should not be altered to life imprisonment. This was because, as at the date the convictions were upheld, the applicants had been incarcerated on death row for a period of 57 months.

On 26 October 1993, an application framed in terms of s 24(l) of the Constitution of Zimbabwe was filed with this Court and served upon the three respondents, who are the Attorney-General, the Minister of Justice, Legal and Parliamentary Affairs, and the Director of Prisons. In their supporting affidavits the applicants deposed to the demeaning factor of prolonged delay and the harsh and degrading conditions under which they are confined in the condemned section of Harare Central Prison. The relief claimed is the grant of

(a)a declaration that execution of sentence of death upon each applicant would now constitute inhuman or degrading punishment or treatment in contravention of s 15(l) of the Constitution; and

(b)an order that the sentence of death imposed upon each applicant be set aside and substituted by a sentence of life imprisonment.

As the applicants are without means, Mr De Bourbon undertook the preparation of the application and the presentation of argument on their behalf This Court is indebted to him for having done so.

Subsequent to the lodging of the application, but a few days before it was due to be heard by this Court, the Constitution of Zimbabwe Amendment (No 13) Act 1993, came into force on 5 November 1993, being the day it was published in the Government Gazette Extraordinary.

The first issue

The position of the applicants differs from that of the four condemned prisoners considered in Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General, Zimbabwe, and Others (supra). In that case the President, acting on the advice of the Cabinet, had declined to exercise the prerogative of mercy and dates had been appointed upon which the condemned prisoners were to be hanged. In the present matter, although the first applicant petitioned the President for mercy on 17 November 1992, the grant or refusal of clemency in respect of both himself and the second applicant has not yet been debated or determined by the Cabinet.

It is this feature that gives rise to the first issue: It is whether this Court, sitting not in its capacity as an appellate Court but as a Court with original jurisdiction possessing the power under s 24(4) of the Constitution to hear and determine an alleged contravention of the Declaration of Rights, should refuse to entertain the particular complaint of the applicants until executive intervention has proved unavailing. Simply put, whether that type of relief should first be exhausted before recourse is had to the Supreme Court.

In Bindura Town Management Board v Desai & Co 1953 (1) SA 358 (A), an appeal from the High Court of Southern Rhodesia, Van den Heever JA pointed out at 362H that there is no general rule of law:

'… that a person who considers that he has suffered a wrong is precluded from having recourse to a Court of law while there is still hope of extra-judicial redress'.

See also Moyo v Ndhlovu 1971 (2) RLR 50 (GD) at 54D.

The enquiry, primarily, is whether the statutory provisions of the extra-judicial redress are such as to oust the jurisdiction of the Court. That will occur either because of an express statement to that effect, or by necessary implication if that is the only reasonable conclusion to be drawn from the particular provisions under consideration; and then merely to the extent indicated by such necessary implication. See Welkom Village Management Board v Leteno 1958 (1) SA 490 (A) at 502G-H; Reid-Daly v Hickman and Others 1981 (2) SA 315 (ZA) at 318F-H; South African Technical Officials' Association v President of the Industrial Court and Others 1985 (1) SA 597 (A) at 613C-D.

The exercise of the prerogative of mercy in terms of s 311 of the Constitution is, to my mind, in the nature of an automatic review of the death sentence. It takes place whether the condemned prisoner seeks it or not. Apart from presenting a petition for mercy which, in any event, is not a prerequisite to the grant of clemency, there is no right in the condemned prisoner to insist on a hearing before the Cabinet in order to deliver an oral argument, or to be present at its deliberations. As observed by Pathak CJ in Kehar Singh and Another v Union of India and Another (1989) 1 SCJ 126 at 136 para 15:

'The manner of consideration of the petition lies within the discretion of the President, and it is for him to decide how best he can acquaint himself with all the information that is necessary for its proper and effective disposal.'

See also the remarks in the Catholic Commission case supra at 271A-B.

I respectfully disagree with the decision in Mohinder Singh v State of Punjab AIR 1976 SC 2299 insofar as it held that an application for clemency under consideration by the President effectively ousted the power of the Court to grant a stay of execution of sentence of death on the ground of inordinate delay. It is inconsistent with the relief given in the later case of Madhu Mehta v Union of India [1989] 3 SCR 774. And it fails to take cognisance of the difference between the judicial remedy and the executive power, to which attention was directed in Kehar Singh and Another v Union of India and Another (supra at 132 para 10) and by Sutherland J in United States v Benz 282 US 304 (1931) at 311.

In Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General, Zimbabwe and Others (supra at 270G-H) it was reiterated that s 24(4) of the Constitution vests extraordinarily wide powers in the Supreme Court to redress a contravention of a fundamental right or freedom of the individual. The same view was expressed recently by the Judicial Committee of the Privy Council in Pratt and Another v Attorney General for Jamaica and Another [1993] 4 All ER 769 (PC) with regard to the similarly worded s 25(2) of the Jamaican Constitution. The purpose is to enable the Supreme Court to afford relief where such is necessary. Even where other adequate means of redress are open to the aggrieved complainant, it is not mandatory that the Supreme Court decline to exercise its powers. The discretion to do so remains.

Against the contextual backdrop of ss 24(l) and (4) of the Constitution, I can find no reason to imply that by virtue of the existence of the prerogative of mercy in s 311, the jurisdiction of the Supreme Court should be limited, in the sense that it is only entitled to grant an application by a condemned prisoner for commutation of sentence of death to life imprisonment based upon the factor of prolonged delay, after executive clemency has been refused.

In my view, the phrase 'adequate means of redress' in the proviso to s 24(4) of the Constitution, is to be construed as referring to judicial remedies and does not embrace executive acts. Where one of the provisions of the Declaration of Rights is being, or is likely to be, infringed, it is the Supreme Court that is mandated by the Constitution to fulfil its protective role and enforce the particular fundamental human right or protection to which the individual is entitled. In doing so it exercises a judicial power. It is the arbiter.

Save for the recent amendments to s 15 of the Constitution, the meaning of which I am shortly to consider, this Court would have had no hesitation in applying the reasoning in the Catholic Commission case supra and in Pratt and Another v Attorney General for Jamaica (supra) and ordering that the death sentences passed upon the two applicants be set aside and substituted with life imprisonment.

I should perhaps add that in respect to this issue no argument to the contrary was presented by the respondents' counsel.

The second issue

What falls to be determined in consequence of the addition by the Constitution of Zimbabwe Amendment (No 13) Act, of ss (5) and (6) to s 15, is whether these provisions must be read as extinguishing the pre-existing right of the applicants to obtain relief for an accepted violation of s 15(l).

It was not in contention that prior to the passing of the amendments, the respondents had joined issue with the applicants' claim that they were being subjected to inhuman or degrading punishment or treatment. Accordingly, as litis contestatio had occurred, the respective rights of the parties were frozen as at that moment. See with regard to modern practice, Milne NO v Shield Insurance Co Ltd 1969 (3) SA 352 (A) at 358C; Potgieter v Rondalia Assurance Corporation of SA Ltd 1970 (1) SA 705 (N) at 710A-C; Government of the Republic of South Africa v Ngubane 1972 (2) SA 601 (A) at 608C-E; Potgieter v Sustein (Edms) Bpk 1990 (2) SA 15 (T) at 18H-19C.

It is a cardinal rule in our law, dating probably from Codex 1. 14.7, that there is a strong presumption against a retrospective construction. See Agere v Nyambuya 1985 (2) ZLR 336 (SC) at 338G-339G. Even where a statutory provision is expressly stated to be retrospective in its operation, it is not to be treated as in any way affecting acts and transactions which have already been completed, or which stand to be completed shortly, or in respect of which action is pending or has been instituted but not yet decided, unless such a construction appears clearly from the language used or arises by necessary implication. See Bell v Voorsitter van die Rasklassifikasieraad en Andere 1968 (2) SA 678 (A) at 684E-F; Bellairs v Hodnett and Another 1978 (1) SA 1109 (A) at I I 48F-G; Pretorius v Minister of Defence 1981 (1) SA 1174 (ZA) at 1177H; Adampol (Pty) Ltd v Administrator, Transvaal 1989 (3) SA 800 (A) at 805F-806D. Care must always be taken to ensure that the retrospectivity is confined to the exact extent which the section of the Act provides. See Attwood v Minister of Justice and Another 1960 (4) SA 911 (T) at 9141F; Lentell v Registrar-General and Another (2) 1979 RLR 465 (A) at 47017-G.

There are cases when the presumption against the removal or impairment of a vested or existing right or obligation has yielded to the clear language of the enactment which has been held to extend to pending proceedings.

In Attorney-General v Vernazza [1960] 3 All ER 97 (HL) at 101E-G Lord Denning said that it was:

'... clear that in the ordinary way the Court of Appeal cannot take into account a statute which has been passed in the interval since the case was decided at first instance, because the rights of litigants are generally to be determined according to the law in force at the date of the earlier proceedings .... But it is different when the statute is retrospective either because it contains clear words to that effect, or because it deals with matters of procedure only, for then Parliament has shown an intention that the Act should operate on pending proceedings, and the Court of Appeal are entitled to give effect to this retrospective intent as well as a court of first instance.'

Well illustrative of this principle is the case Zainal bin Hashim v Government of Malaysia [1979] 3 All ER 241 (PC). The appellant, a police constable in the Malaysian police force, had been convicted of an offence and dismissed from the Force by a chief police officer on 20 January 1972. The Police Force Commission, under power conferred on it by the Constitution, had delegated to chief police officers power to dismiss but no power to appoint. The appellant brought an action against the Government claiming a declaration that his dismissal was void and inoperative. On 21 March 1975, the trial Judge found in his favour on the ground that the dismissal contravened art 135(l) of the Constitution, because a chief police officer had no power to appoint constables. One year later, article 135(l) was amended by the addition of the proviso: 'that this clause shall not apply to a case where a member (of the police force) is dismissed ... by an authority in pursuance of a power delegated to it by (the Police Force Commission), and this proviso shall be deemed to have been an integral part of this clause as from Merdeka Day' (ie 31 August 1957). Relying on the amendment, the Government appealed against the decision of the trial Judge to the Federal Court. It allowed the appeal on the ground that the proviso operated to validate the appellant's dismissal. In a further appeal to the Judicial Committee of the Privy Council, it was contended that the amendment could not apply as the appellant's action had been commenced, and judgment given on his claim, before the amendment came into force. In dismissing the contention, Viscount Dilhorne, speaking for the Judicial Committee, posed the question at 244g:

'Did the Legislature mean by the amendment to the Constitution to go so far as to deprive the appellant of his entitlement to a declaration that his dismissal was void and, consequently, to the pay and emoluments which but for his dismissal he would have received? Recognising that the amendment has a retrospective effect, is it possible and right to draw a distinction between a case where a dismissed constable has such a claim, a case where he has commenced an action to establish his entitlement and a case where he has obtained judgment on the trial of such a claim?';

and provided the answer at 245f-g:

'The effect of the amendment was to deprive a constable dismissed for misconduct by a chief police officer, to whom power to dismiss him had been properly delegated, of the right to maintain that his dismissal was invalid owing to the omission to delegate to the chief police officer power to appoint constables. If the appellant had started his action after the operative date of the amendment, their Lordships think that in consequence of the amendment it would have been bound to fall. Otherwise the reference to Merdeka Day would have no legislative content. Can the amendment be construed so that a different result would follow if such an action had been started by a wrongly dismissed constable before the Constitution was amended? In the Lordships' opinion the answer must be in the negative. If this is right, it can make no difference that the action started had got to the stage of judgment being given for the constable and under appeal when the amendment was made. In their Lordships' view the conclusion is inescapable that the Legislature intended to secure that no such actions started after Merdeka Day, whether proceeding, or not started, when the amendment was made, should succeed on the ground that the power to dismiss had not been exercised by someone with power to appoint.'

(Emphasis added.) See also Hewitt v Lewis [1986] 1 All ER 927 (CA) at 930f-g.

It is in the light of these interpretational guide-lines that the necessary intendment of the Legislature in enacting ss (5) and (6) is to be ascertained. In doing so, account must be taken of the statement of Lord Denning in Escoigne Properties Ltd v Inland Revenue Commissioners [1958] 1 All ER 406 (BL) at 414D that:

'A statute is not passed in a vacuum, but in a framework of circumstances, so as to give a remedy for a known state of affairs. To arrive at its true meaning, you should know the circumstances with reference to which the words were used; and what was the object, appearing from those circumstances, which Parliament had in view. That was emphasised by Lord Blackburn in River Wear Comrs v Adamson ((1877) 2 App Cas 743 at 763-5) and by the Earl of Halsbury LC in Eastman Photographic

Materials Co v Comptroller-General of Patents ([ 1898] AC 571 at 575, 576) in passages which are worth reading time and again.'

This dictum was approved of and applied in R v Jessie 1965 (1) SA 325 (SRA) at 328A-B; and in Conway v Conway 1966 (4) SA 225 (RA) at 229C-D. See also S v Meredith 1981 (3) SA 29 (ZA) at 33E-G.

It was generally known to well-informed persons that the decision in Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General, Zimbabwe and Others (supra), which was handed down on 24 June 1993, met with the disapproval of Government. The rationale was publicly criticised on two grounds: First, that it was illogical to mark prolonged delay in carrying out a sentence of death as inhuman or degrading, for by its very nature delay lengthened the life of the condemned prisoner, an occurrence that he would desire, and did not shorten it. Second, that in altering the sentence to life imprisonment the Supreme Court had arrogated to itself the executive power of the prerogative of mercy that vested in the President. So, with comparative expedition the Constitution of Zimbabwe Amendment (No 13) Act was passed.

I think it may be said, on applying Lord Denning's approach, that the object of Parliament was to remedy a perceived 'mischief' that the judgment had caused, by enacting that any delay in the execution of sentence of death would no longer be unconstitutional. But must one assume that it was minded to defeat a vested or existing right, so occasioned as well? In this respect the 'framework of circumstances', against which the amendments to s 15(l) came into force, gives no firm lead.

The above historical setting provides something of a starting place for ascertaining the intention of the Legislature in adding ss (5) and (6). It points to the circumstances with reference to which the words were used, and the object that the law-maker, using them, wished to achieve. It is yet another interpretational aid.

Finally, before turning to an examination of the amending provisions, I would stress that where fundamental human rights or freedoms are conferred on individuals under a Constitution, derogations therefrom, as far as their language permits, should be narrowly or strictly construed. See Minister of Home Affairs and Others v Dabengwa and Another 1982 (4) SA 301 (ZS) at 306H; S v Ncube; S v Tshuma; S v Ndhlovu and Others 1988 (2) SA 702 (ZS) at 715C; African National Congress (Border Branch) and Another v Chairman, Council of State of the Republic of Ciskei, and Another 1992 (4) SA 434 (Ck) at 447G-I.

Subsections (5) and (6) read:

'(5)Delay in the execution of a sentence of death, imposed upon a person in respect of a criminal offence of which he has been convicted, shall not be held to be a contravention of ss (1).

(6)A person upon whom any sentence has been imposed by a competent court, whether before, on or after the date of commencement of the Constitution of Zimbabwe Amendment (No 13) Act, 1993, in respect of a criminal offence of which he has been convicted, shall not be entitled to a stay, alteration or remission of sentence on the ground that, since the sentence was imposed, there has been a contravention of ss (1).'

Unlike the constitutional amendment considered by the Judicial Committee of the Privy Council in Zainal bin Hashim v Government of Malaysia (supra) which set Merdeka Day (the country's Independence Day on 31 August 1957) as the date from which the law was stated to operate, ss (5) fixes no specific date. In contrast is the deeming date of commencement formula employed in the Constitution of Zimbabwe Amendent (No 3)

Act 1983, s 15(2), and Constitution of Zimbabwe Amendment (No 8) Act 1989, s 3(2).

Both the phrase 'shall not be held' and the omission to utilise the same wording as in ss (6), so as to read: 'Delay ... whether (occurring) before, on or after the date of commencement . . ', are persuasive indications that the provision is to be viewed as prospective in its operation.

This conclusion is underscored when account is taken of the well-established rule that a statute should be interpreted, where possible, so as not to impair or extinguish substantive rights actually vested at the time of its promulgation. Courts will only find that such an inequitable result was intended when compelled to do so by language so clear as to admit of no other inference. See Curtis v Johannesburg Municipality 1906 TS 308 at 311. The supposition is that the Legislature intends to deal with future events and circumstances and not with those pertaining to the past. See Principal Immigration Officer v Purshotam 1928 AD 435 at 450; R v Margolis and Others 1936 OPD 143 at 144; Bartman v Dempers 1952 (2) SA 577 (A) at 580C; Katzenellenbogen Ltd v Mullin 1977 (4) SA 855 (A) at 884D.

In my opinion, it cannot be said that the effect of ss (5) is, by necessary implication, expressed to be back-dated to destroy the vital fundamental right to obtain the substitution of a sentence of life imprisonment for that of death, that vests as soon as the delay in carrying it out becomes inordinate.

In the premise, ss (5) must be taken to mean that delay occurring on or after the date of commencement of the Constitution of Zimbabwe Amendment (No 13) Act shall not be held to be a contravention of ss (1).

In the absence of ss (5), the ambit of ss (6), by its use of the words 'any sentence', would extend to 'a sentence of death'. As ss (6) removes the entitlement of a person sentenced before, on or after the date of commencement to a stay, alteration of remission of sentence, on the ground that subsequent to the imposition of such sentence he was 'subjected to torture or to inhuman or degrading punishment or other such treatment' in contravention of ss (1), the question that immediately comes to mind is why did the law-maker enact ss (5)?

It is a foremost principle of interpretation that a court must give effect to every word appearing in a statute unless necessity or absolute intractability of language dictates otherwise. Recognising this, Kotze JA in Attorney-General, Transvaal v Additional Magistrate for Johannesburg 1924 AD 421 said at 436:

'A statute ... should be so construed that, if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant. To hold certain words occurring in a section of an Act of Parliament as insensible and as having been inserted through inadvertence or error is only permissible as a last resort.'

See also R v Standard Tea and Coffee Co (Pty) Ltd and Another 1951 (4) SA 412 (A) at 416F; Commissioner for Inland Revenue v Southern Life Association Ltd 1986 (4) SA 717 (A) at 729J-73OB; Commissioner for Inland Revenue v Golden Dumps (Pty) Ltd 1993 (4) SA I10 (A) at II6F- I17A.

To ascribe a sensible meaning to ss (5) and to avoid superfluity necessitates the legitimate recourse of construing the general words 'any sentence' in ss (6) as excluding the specific reference to 'a sentence of death' in ss (5). This is no more than an application of the rule embodied in the maxim 'expressio unius, exclusio alterius'. It draws attention to the fairly obvious linguistic point that in many contexts the mention of some matters warrants an inference that other cognate matters were intentionally excluded. See Maxwell on The Interpretation of Statutes 12th ed at 293.

Under ss (5) delay in the execution of a sentence of death shall not be held to be a contravention of ss (1). It follows that no remedy exists at all. The Court cannot grant 'a stay, alteration or remission' or even an interdict, damages or other relief, for an infringement of ss (1) based on delay. The provision has completely removed the right and remedy for delay in the execution of a sentence of death. The fundamental right that previously existed and the remedy that was afforded, have been totally extinguished.

Subsection (6), on the other hand, in providing that a person upon whom any sentence has been imposed shall not be entitled to a stay, alteration or remission of sentence, on the ground that since the date of imposition there has been a contravention of ss (1), leaves open and still available to him other remedies such as the grant of an interdict or damages.

To read ss (6) as encompassing the deprivation of the remedy of a stay, alteration or remission of a sentence of death on the ground of delay, would render ss (5) entirely redundant. It would also lead to an apparent inconsistency. Whereas ss (5) allows a condemned prisoner who, prior to 5 November 1993, had been subjected to prolonged delay in the execution of sentence, to obtain redress on the basis of a pre-existing right, ss (6), being retrospective as well as prospective in its operation, would defeat that fight.

Although tautology is not uncommon in legislation (see for example, Casely NO v Minister of Defence 1973 (1) SA 630 (A) at 639B-C), there is no mere tautology between ss (5) and (6). The former relates to a sentence of death and delay in its execution; the latter to all other sentences. This is the only logical way in which these two provisions may be reconciled.

The conclusion

The conclusion reached that the pre-existing right of the applicants to obtain relief for a violation of s 15(l) remains unaffected by the Constitution of Zimbabwe Amendment (No 13) Act 1993, makes it unnecessary to decide whether ss (6), as a matter of language, was intended to operate on pending proceedings. I would also leave open consideration of the third issue argued before this Court, namely, whether the passage of the Bill through Parliament had been conducted in compliance with governing Parliamentary procedures and the requirements of the Constitution and, thus, was validly enacted.

The order

In the result:

1. The application is allowed with costs to be paid by the second respondent.

2. It is declared that execution of sentence of death upon each applicant would constitute inhuman or degrading punishment or treatment in contravention of s 15(l) of the Constitution of Zimbabwe.

3. It is ordered that sentence of death passed upon each applicant be set aside and substituted with a sentence of imprisonment of life.

McNally JA, Korsah JA and Ebrahim JA concurred in the judgment of Gubbay CJ.

JUDGMENT

Muchechetere JA: I agree with the learned Chief Justice on his exposition of the law involved in this case and the conclusion he arrived at on the first issue. It is, however, in connection with the conclusion he arrived at on the second issue that I, with respect, find myself unable to agree on that issue. I am of the view that ss (6) of the Constitution of Zimbabwe Amendment (No 13) Act 1993 has extinguished the pre-existing right of the applicants to obtain relief for an accepted violation of s 15(l) of the Constitution. My view is based mainly on the fact that I accept Mr. Chikumira's analysis of the amendment.

In the first instance, I would add to the historical setting of the amendment which has been outlined above by the learned Chief Justice, the factor that at the time of the decision in Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General, Zimbabwe and Others (supra) and indeed after, it was also well known that there were many persons convicted and sentenced to death who had also suffered prolonged delay and harsh and degrading conditions in the cells in which they were confined. Some of these persons had filed affidavits in support of the applicant's position in that case. The only reason why these persons could not at the time be joined in the case was that in the cases of some of them the applicants fell in this category - their appeals against the death penalty had not been confirmed by the Supreme Court. In some cases the executive had not yet considered whether the sentence of death would be carried out.

In the circumstances, it was known to Parliament at the time it passed the amendment that there were already persons who stood to benefit from the decision in the above case - persons who already had pre-existing rights. This factor should therefore, in my view, be considered to have been taken into account when Parliament set about to remedy the perceived 'mischief.'

From the outlined historical setting, it is clear that the intention of the Legislature was to reverse the application of this Court's decision in the case. In this connection I agree with the submission that, although the diminution of an individual's fundamental rights, such as is the case here, is something tended to be frowned upon, they are nevertheless bound by legislative intention. I also agree that in determining the intention of the Legislature in an enactment, the fact that the courts are not in sympathy with the policy to which the Act appears to give effect should not be a hindrance. See Inland Revenue Commissioners and Another v Rossminster Ltd and Others [1980] AC 952 (HL) at 998, where Lord Wilberforce states the following:

'. . . (W)hile the courts may look critically at legislation which impairs the rights of citizens and should resolve any doubt in interpretation in their favour, it is no part of their duty, or power, to restrict or impede the working of legislation, even of unpopular legislation. . .'.

In the same case at 1008D-E Lord Diplock stated the following:

.. (J)udges in performing their constitutional function of expounding what words used by Parliament in legislation mean, must not be over-zealous to search for ambiguities or obscurities in words, which on the face of them are plain, simply because the members of the court are out of sympathy with the policy to which the Act appears to give effect.''

See also the following cases cited by Mr. Chikumira - S v Takaendesa 1972 (4) SA 72 (RA) at 77; and Nxasana v Minister of Justice and Another 1976 (3) SA 745 (D) at 747-8.

It is with the above considerations in mind that I agree with Mr. Chikumira's submission that ss (5) has the effect of preventing a person who on a future date after the coming into operation of the amendment has been convicted of murder and sentenced to death coming to court and raising delay in execution of sentence to be a contravention of ss (1). Subsection (5) does not therefore apply to persons such as the applicants, who were convicted before the coming into operation of the amendment.

The subsection is therefore prospective in nature. It does not, in the circumstances, have the effect of taking away the vested rights of persons.

On the other hand, I agree that applicants or persons who were con-victed and sentenced to death before the commencement of the amendment, are nevertheless, by the provisions of ss (6), deprived of the remedy of 'a stay, alteration or remission of sentence on the ground that, since the sentence was imposed, there has been a contravention of ss (1)'. The subsection speaks of 'any sentence', which I agree includes that of death, passed 'before, on or after' the date of commencement of the amendment. The inclusion of the word 'before' in the subsection in my view indicates that the subsection, unlike ss (5), is retrospective. It therefore operates to deprive applicants of the remedies mentioned.

I agree that ss (6) is also prospective in nature, but consideration should be given to the fact that it deprives applicants of a remedy whilst ss (5) deprives applicants of the right to a finding that there has been a contravention of ss (1). Further, in my view, ss (6), by its use of the words 'any sentence', operates to include any other sentences besides the death sentence and therefore is wider in scope than ss (5). In the circumstances, I am, respectfully, of the view that ss (6) does not render ss (5) entirely redundant. I am also, respectfully, of the view that there has been to some extent the factor of tautology, as submitted by Mr Chikumira, and referred to by the learned Chief Justice.

I also agree that, the respondents having joined issue with the applicants in this matter before 4 November 1993, litis contestatio has occurred. This fact was therefore properly conceded by Mr Chikumira. In addition, this Court held that to be the case in an application for an urgent hearing of the matter by the applicants. The position was therefore that at the time the amendment became operative the applicants' case was still to be fully heard before this Court. This Court had therefore not yet pronounced on whether or not there had been delay which contravenes s 15(l) of the Constitution.

In my view, what the applicants achieved was to preserve their right to aver delay and use it as a factor in determining breach of s 15(l) of the Constitution. Subsection (5) does not therefore deprive them of the right to aver delay because it is not retrospective and was not meant to deprive accrued rights.

The applicants are, however, caught by ss (6). As I have endeavoured to explain above, that subsection deprives any person who was sentenced to death before the commencement of the Act of the remedy of stay of execution. The applicants are such persons. They may have acquired rights but they have been deprived of a meaningful remedy. That this was deliberately so stems from the use of the word 'before' in ss (6).

If I understood Mr. De Bourbon's submissions correctly during his address, he at some stage stated that the conclusion I have reached above in connection with ss (6) could have been achieved if the words 'whether before, on or after the date of the commencement of the Constitution of Zimbabwe Amendment (No 13) Act 1993' were inserted immediately after the word 'entitled'. In my view, such a construction would not have altered the subsection's effect, which, as I have concluded, would have been to deprive the applicants of the remedy they seek.

Lastly on the above issue, I should state that, in my view, the reason why the amendment under consideration is unlike that considered by the Privy Council in Zainal bin Hashim v Government of Malaysia (supra), the Constitution of Zimbabwe Amendment (No 3) Act 1983, s 15(2), and also the Constitution of Zimbabwe Amendment (No 8) Act 1989, s 3(2), in that it does not fix a specific retrospective date from which it operates, is because ss (6) states the retrospective provisions. Setting a date would in the circumstances have added to the amount of tautology in the amendment.

The third issue raised by Mr. De Bourbon was that the said amendment was invalidly enacted. In this connection he submitted that s 52(2a) of the Constitution of Zimbabwe requires a constitutional amending Bill, at its final vote in Parliament, to receive the affirmative vote of not less than two-thirds of the total membership of Parliament. In the present Parliament that means an amendment must receive the affirmative vote of at least 100 members at its final reading.

Mr. De Bourbon further stated that the final reading in respect of the said amendment took place on 28 September 1993. He stated that Hansard of that date, column 2451, records that the second respondent (the Minister of Justice, Legal and Parliamentary Affairs) moved that the Bill be read for the third time. The motion was put and agreed to. The Bill was then read for the third time. This, according to Mr. De Bourbon, was the final reading of the Bill in Parliament. He added that there is nothing in Hansard to show that the Bill received the affirmative vote of at least 100 of the members of Parliament.

After the said voting it was, later that day, pointed out to the Deputy Speaker of Parliament by a Member of Parliament that the passing of the Bill was wrong. After considering the matter, the Deputy Speaker concluded that 'the proceedings on the Bill after the Second Reading are not therefore in conformity with the provisions of the Constitution. I therefore declare these proceedings on the Bill null and void and the third reading stage will appear on the Order Paper tomorrow'. A fresh third reading was purportedly held on 6 October 1993.

One Austin Muranganwa Zvoma, the Secretary to Parliament, filed a respondents' supporting affidavit by consent. He did not dispute what had been stated by Mr. De Bourbon, but explained that on 28 September 1993 the bill was read for the third time and passed without a vote count. He went on to state that as there was no vote count it was not possible to indicate how many members voted and that it was not even possible to tell how many members were in the Chamber at the time of the reading. He stated that the reason why the Deputy Speaker made a ruling declaring the third reading null and void was because there was no count of votes and that consequently the procedure did not comply with the provisions of s 52(2a) of the Constitution. The procedure which had been followed was that of ordinary bills and not amendments of the Constitution. This, he said, was irregular.

Mr. Zvoma went on to state that on 6 October 1993 the Bill was read for the third time and passed, having received 101 votes in favour. He annexed to his affidavit the Speaker's Certificate dated 6 October 1993, stating that the Bill had been passed by Parliament in accordance with the law. He stated that on 2 November 1993 the President gave his assent to the Bill. On 14 November 1993 it was dispatched to the High Court for enrolment and on 5 November 1993 it was promulgated as an Act of Parliament when it was published in the Gazette Extraordinary.

Mr. De Bourbon submitted that Parliament had no power to adopt the course it did. He also submitted that there was no provision in the Standing Orders of Parliament for a question to be put a second time. He cited Erskine May Parliamentary Practice 17th ed at 412, where the learned author states:

'. . . in no circumstances is it competent for the House to rescind a resolution during the sitting when the resolution was agreed to'.

He thereafter submitted that, based on Hansard, the Court should hold that the amendment was not passed in accordance with the provisions of s 52(2a) of the Constitution and is therefore not valid.

I am, however, in agreement with the submissions of Mr. Patel on this issue, especially his main submission that this Court is not competent to enquire into the internal proceedings relating to the third reading of the amendment. His alternative submission was that even if such enquiry is competent, the passage of the amendment was conducted in full compliance with the governing Parliamentary procedures and the requirements of the Constitution.

Mr. Patel submitted that what was really being challenged in this case was the power of Parliament to set aside the first set of proceedings relating to the third reading of the Bill and to institute fresh proceedings at a later stage in order to rectify an obvious irregularity in its proceedings. I agree. He thereafter argued that Parliament has powers to act as it did because the matters complained of above are in their nature internal to Parliament.

Mr. Patel stated that s 51(7) of the Constitution, as read with Schedule 4 thereto, gave the general framework of the procedure to be applied with respect to Bills and that s 57(l) empowers Parliament to make Standing orders for the passing of Bills and the regulation of proceedings and business in Parliament. There is also s 3 of the Privileges, Immunities and Powers of Parliament Act Chap 10 (Z) which provides that Parliament shall hold, exercise and enjoy privileges, immunities and powers as were applicable to the British House of Commons on 18 April 1980. He thereafter argued that in the circumstances the law and practice in Zimbabwe in this sphere derives from English law and practice and that, unless expressly altered or modified by statute, English law and practice should continue to apply.

Mr. Patel also submitted that s 5(l) of Chap 10 reaffirms that the freedom of speech and debates or proceedings in or before Parliament shall not be liable to be impeached or questioned in any court or place outside Parliament. He thereafter argued that despite differences in wording s 5 (1) of Chap 10 has the same general effect as art IX of the English Bill of Rights 1689 which is set out in Erskine May Parliamentary Practice 21st ed at 84. See Poovalingam v Rajbansi 1992 (1) SA 283 (A) at 289 where Corbett CJ said:

'The preamble to the Act (Cape Act I of 1854 which is reproduced in our Privileges and Parliament Act 1924) recites that it is essential for the due functioning of Parliament and the promotion of wise legislation that there should be freedom of speech and the Act then proceeds to enact (in s 1)

". . . that there shall be freedom of speech and debates, or proceedings in Parliament, and that such freedom of speech and debates, or proceedings in Parliament, shall not be liable to be impeached or questioned in any Court or place out of Parliament".

This enactment is obviously modelled on art 9 of the Bill of Rights but unfortunately the draftsman appears to have misunderstood the syntax of art 9. The latter seemingly conveys that what may not be impeached or questioned are freedom of speach, debate and proceedings. In fact Blackstone (op cit at 132) quotes art 9 as providing

"that the freedom of speech, and debates, and proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament".

In Act I of 1854 (Cape) s I appears to link "freedom" with speech, debates and proceedings.'

See also Erskine May (op cit at 90-1) where the learned author states the following:

'. . (T)he right of both Houses to be sole judge of the lawfulness of their own proceedings, or to settle - and depart from - their own codes of procedure is fully established.',

and that, accordingly, the Courts recognise

"…their incompetence to inquire into the internal proceedings of a House of Parliament'.

See also Ex parte Wilson 1933 SR 76 at 78; Chikerema and Others v The United African National Council and Another 1979 (4) SA 258 (ZRA) at 264-5; and Poovalingam's case supra.

After considering the above statutory provisions which were ably set out by Mr. Patel and the cases he has cited, I am of the view that once the Speaker has certified, as he did, in terms of s 52(5) of the Constitution that the Bill has received the requisite majority on the final vote thereon in Parliament, this Court is precluded from inquiring into or pronouncing upon the validity of the Parliamentary proceedings.

In view of the above finding I will not deal with Mr. Patel's alternative submission. In the result I would dismiss the application.

Respondent's Legal Practitioners: Civil Division of the Attorney-General's Office.