The Constitutional Court (ConCourt) yesterday said some magistrates were failing to interpret the Constitution and suggested that the Judicial Service Commission (JSC) should offer training to them.
BY CHARLES LAITON
The remarks were made by Deputy Chief Justice Luke Malaba, while entertaining a constitutional application filed by Masiiwa Magaso, who was represented by Advocate Thabani Mpofu instructed by a senior Harare lawyer, Everson Chatambudza.
In the magistrates’ court Magaso challenged the State’s intention to produce records of private electronic communication between herself and other parties via Skype after auditors accessed her personal account without approval.
Justice Malaba said the referred matter showed confusion on the part of the magistrate who dealt with the case when he made a determination to send the matter to the ConCourt despite a plethora of decided cases discouraging such actions.
“The magistrate simply referred the record to this court instead of referring a question to be decided by the court. We have said it time and again and we have written several judgments addressing the same problems, but it seems the magistrates keep on repeating the same mistake,” Justice Malaba said before declining to hear the matter.
The Deputy Chief Justice said magistrates must be guided by Section 175 (4) of the Constitution each time they entertain a matter with a view of referring it to the superior court. The quoted section reads: “If a constitutional matter arises in any proceedings before a court, the person presiding over that court may and, if so requested by any party to the proceedings, must refer the matter to the ConCourt, unless he or she considers the request is merely frivolous or vexatious.”
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In the matter before the court, Justice Malaba said the magistrate did not make such a finding, but simply went ahead and referred the case for a constitutional determination.
Although Advocate Mpofu tried to convince the court that the magistrate had encountered a problem, hence, wanted guidance from the superior court, Justice Malaba, in concurrence with Justice Paddington Garwe, refused to budge.
“Judgments are there and I think there is need for more education for the magistrates. We will take your concern to the JSC for the training of the magistrates, especially addressing this area of problem,” he said.
In his submissions earlier, Mpofu tried to convince the court to entertain the matter saying: “A snake has already gotten into the house and no matter how it found its way in, whether through the door, roof or window, a solution must, therefore, be found to deal with it.”
But, the court eventually ruled the matter be struck off the roll by consent.
