The inherent power to develop the common law or customary law

Section 46(2) of the Constitution of Zimbabwe provides that when interpreting an enactment, and
when developing the common law and customary law, every court, tribunal or body must promote
and be guided by the spirit and objectives of this Chapter. Law is interpreted or developed in a way
that makes it conform to the Constitution.1 Section 179 of the Constitution states that the
Constitutional Court, the Supreme Court and the High Court have inherent power to protect and
regulate their own process and to develop the common law or the customary law, taking into account
the interests of justice and the provisions of this Constitution.2 The law should be certain and
predictable; it should also be just and move with the times.3 In the case of Nyamande & Donga
versus Zuva Petroleum4 the Supreme Court delivered a shocking judgment that authorized employers
to terminate permanent employees by merely giving three months notice. This resulted in veritable
job losses with tens of thousands being thrown out of work over the next six weeks onto a shrunken
job market. The Zuva judgment concluded that employers had the same unfettered Common Law
right to terminate permanent employees by giving them three months’ notice as employees did to
leave the job by giving three months’ notice.

The law must also change: it is not “a mausoleum.”5 Both continuity and creativity are legitimate
values in the development of the common law.6 Determining the effect of an apparent precedent
frequently requires complex analysis of the case law, including the contexts in which principles were
developed and the interrelationship between different decisions.7 By distinguishing or reinterpreting
a decision, later judges might determine that it supports a principle quite different from what was
previously thought.8 Common law courts are challenged to find the appropriate balance “between
certainty and flexibility.”9 Precedent must not be “our master”.10 It can be noted that changing the
common law in a modest, incremental fashion ensures that change remains within the confines of

1
I Carrie & J De Waal The Bill of Rights Handbook s 6th edition (2013), 24.
2
Constitution of Zimbabwe Amendment No.20.
3
J Reid “The Judge as Law Maker”. Journal of Society of Public Teachers of Law 12 (1974): 22, 26
4
SC 43/2015.
5
McInerney v Liddy [1945] IR 100, 104 (IEHC);
6
RA Posner The Problematics of Moral and Legal Theory Cambridge (1999) 244.
7
The People (DPP) v Mallon [2011] IECCA 29, para 49 (IECCA).
8
S Henchy “Precedent in the Irish Supreme Court”. Modern Law Review 25: 544 (1962), 558.
9
S Henchy “Precedent in the Irish Supreme Court”. Modern Law Review 25: 544 (1962), 558.
10
J Reid “The Judge as Law Maker” .Journal of Society of Public Teachers of Law 12: 22 (1974), 25.
what citizens might reasonably expect.11 How far judges have the power to modify the common law
seems is a question of degree: it is not entirely clear where the line should be drawn.12

Orders of constitutional invalidity

It can be noted that the enactment of the final Constitution automatically invalidated all
unconstitutional laws 13(and continues to do so whenever a new unconstitutional law in enacted), ‘as
a practical matter, inconsistency, invalidity and remedies cannot be separated from one another.
Invalidity ... follows from inconsistency with the constitution but, by declaring the law or conduct to
be invalid, a court grants a remedy’.14 These orders are default remedy following a finding of
invalidity and will only be departed from when a more limited order will provide a better
outcome.15The default remedy following a finding that a law or provision of a law is inconsistent
with the Constitution to declare the law or the provision invalid to the extent of the inconsistency16
(section 2(1) of the Constitution of Zimbabwe.) In a constitutional state, the supremacy of the
Constitution means that laws or conduct inconsistent with the Constitution are invalid and that a
court must declare them to be so.17 It should be noted that the remedy should be ‘just and equitable’
and this is why the courts are empowered to regulate the impact of a declaration of invalidity. 18 The
impact of a declaration of invalidity may be regulated by severing the unconstitutional provisions in
a statute from the constitutional ones, by reading-in, by controlling the retrospective effects of a
declaration of invalidity, or by temporarily suspending a declaration of invalidity or any combination
of the aforementioned.19 However, although surprisingly uncommon, cases exist in which complete
immediate and fully retrospective invalidity is the only sensible remedy.20

11
T Bingham “The Rule of Law”. Judicial Studies Institute Journal: 121 (2008), 126.
12
See GW Hogan and GF Whyte JM Kelly: The Irish Constitution. 4th edition. (2003), 259.
13
Ferreira v Levin NO & Others; Vryenhoek & Others 1996 (1) SA 984 (CC), 1996 (1) BCLR 1 (CC) at paras 26 and
158; Fose v Minister of Safety and Security 1997 (3) SA 786 (CC), 1997 (7) BCLR 851 (CC) at para 94 (Kriegler J).
14
I Currie and J de Waal The Bill of Rights Handbook (5th Edition, 2005) 193.
15
See I Currie and J de Waal The Bill of Rights Handbook (6th Edition, 2005) 199.
16
I Carrie and J de Waal The Bill of Rights Handbook s (6th edition, 2013), 183.
17
Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd 2011 (4) SA 113 (CC) [81-87].
18
See the case of Executive Council of the Western Cape Legislature v President of South Africa 1995 (4) SA 877 (CC)
[107].
19
South African National Defence Union v Minister of Defence 2007 (5) SA 400 (CC) [99]. See also Bhe v Magistrate,
Khayelitsha 2005 (1) SA 580 (CC). These cases illustrate that when certain customary law rules of succession were
found to be inconsistent with the equality rights of women and illegitimate children, the Constitutional Court replaced
these rules with a set of temporary new rules, pending law reform by Parliament.
20
Magajane v Chairperson: North West Gambling Board 2006 (5) SA 250 (CC), 2006 (10) BCLR 1133 (CC) at paras
97-99.
As a matter of jurisdiction, the High Courts, the Supreme Court of Appeal and the Constitutional
Court may declare all forms of legislation and conduct invalid.21 It must be stated at the outset that
only the Constitutional Court has the jurisdiction to make an effective order of constitutional
invalidity concerning an Act of Parliament, provincial legislation or conduct of the President. When
a court pronounces a governmental act or decision to be invalid, the act or decision is generally
treated as void ab initio.22 The Constitutional Court is the highest court in all constitutional matters,
and its decisions on those matters bind all other courts.23 The Constitutional Court makes the final
decision whether an Act of Parliament or conduct of the President or Parliament is constitutional, and
must confirm any order of constitutional invalidity made by another court before that order has any
force.24 A close analysis of section 167(3) of the Constitution means that while any court may
declare a statue invalid; declarations of invalidity of national or provincial legislation or conduct of
the President have no force unless they are confirmed by the Constitutional Court.

(d)The power to grant any order that is just and equitable

Section 85 of the Constitution of Zimbabwe provides the remedy for a violation of the Declaration of
rights.25 The Constitution confers rights on persons and tells them that they may look to the courts
for the protection and enforcement of such rights. 26 The only requirement of the Constitution is that
the relief given by a competent court in any particular case should be “appropriate relief”.27 It should
be noted that the Constitution does not define what is just and equitable and what is not or does not
tell us what ‘appropriate relief’ is.28 It is left to the courts to decide what would be appropriate relief
in any particular case.29This can only mean that this provision sanctions a flexible approach to

21
I Carrie and J De Waal The Bill of Rights Handbook s 6th edition (2013), 184.
22
Michael Taggart 'Rival Theories of Invalidity in Administrative Law: Some Practical and Theoretical Consequences' in
Michael Taggart (ed), Judicial Review of Administrative Action in the 1980s (1986) 53; HWR Wade and Christopher
Forsyth, Administrative Law (8th ed, 2000) 294-312; Christopher Forsyth, 'The Metaphysic of Nullity, Invalidity,
Conceptual Reasoning and the Rule of Law' in Christopher Forsyth and Ivan Hare (eds), The Golden Metwand and the
Crooked Cord: Essays in Honour of Sir William Wade QC (1998)141.
23
Section 167 (1) (a) of the Constitution of Zimbabwe.
24
Section 167(3) of the Constitution of Zimbabwe.
25
Section 85(1) of the Constitution of Zimbabwe states that any of the following persons, namely-
(a) Any person acting in their own interest;
(b) Any person acting on behalf of another person who cannot act for themselves;
(c) Any person acting as a member, or in the interests, of a group or class of persons;
(d) Any person acting in the public interest;
(e) Any association acting in the interest of its members;
is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being
or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of
compensation.
26
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) [18].
27
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) [18].
28
I Carrie and J De Waal The Bill of Rights Handbook s 6th edition (2013), 180.
29
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) [18].
remedies.30 If there is no appropriate legislative remedy, the court must turn to existing common
law31 and if an appropriate remedy cannot be found there, the court is obliged to develop such a
remedy to give effect to the Declaration of rights.32

In the case of Fose v Minister of Safety and Security33 Ackermann J stated that, “Appropriate relief
will in essence be relief that is required to protect and enforce the Constitution. Depending on the
circumstances of each particular case the relief may be a declaration of rights, an interdict, a
mandamus or such other relief as may be required to ensure that the rights enshrined in the
Constitution are protected and enforced. If it is necessary to do so, the courts may even have to
fashion new remedies to secure the protection and enforcement of these all important rights.”34
Particularly in a country where so few have the means to enforce their legal rights through the courts,
it is essential that on those occasions when the legal process does establish that an infringement of an
entrenched right has occurred, it be effectively vindicated. The courts have a particular responsibility
in this regard and are obliged to 'forge new tools' and shape innovative remedies, if needs be, to
achieve this goal.35

It is interesting to note that the object in awarding a remedy is not to grant relief to the litigant before
the court but also to vindicate the Constitution and deter future infringements. 36 Vindication is
necessary because harm to constitutional rights, if not addressed, will diminish the public’s faith in
the Constitution.37

Orders limiting the retrospective effect of constitutional invalidity

It should be stated that an order limiting retrospectivity can take two main forms. 38 It can limit the
date from which it operates, or it can limit the type of people or cases to which the order applies. 39
Thus far, when the Court, when limiting retrospectivity based on a date, has made its orders
applicable from the date of judgement and therefore effectively given the orders no retrospective
effect.40 The constitutional supremacy clause automatically makes any unconstitutional law or

30
Sanderson v Attorney –General, Eastern Cape 1998(2) SA 38 (CC) [38].
31
Dikoko v Mokhatla 2006 (6) SA 235 (CC) [91] (common-law remedies that vindicate constitutionally entrenched rights
are usually ‘appropriate relief’ for infringements of those rights).
32
I Carrie & J de Waal The Bill of Rights Handbook s (6th edition, 2013), 180.
33
1997 (3) SA 786 (CC).
34
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) [19].
35
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) [69]
36
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) [96].
37
I Carrie and J De Waal The Bill of Rights Handbook s 6th edition (2013), 181.
38
Bishop in Woolman and Bishop Constitutional law of South Africa (2014) (Volume 1) Chapter 9, 9-132.
39
Bishop in Woolman and Bishop Constitutional law of South Africa (2014) (Volume 1) Chapter 9, 9-132.
40
Bishop in Woolman and Bishop Constitutional law of South Africa (2014) (Volume 1) (above) at 9-132.
conduct a nullity.41 In principle, therefore, the declaration invalidates the legislation and any actions
taken under the legislation from the moment the legislation or the Constitution came into effect,
whichever is the later date, and not from the moment of the court’s order.42 In the case of Ferreira v
Levin NO43 Ackermann J stated that,

The court’s order does not invalidate the law; it merely declares it to be invalid... A pre-
existing law which was inconsistent with the provisions of the Constitution became invalid
the moment the relevant provisions of the Constitution came into effect. The fact that this
Court has the power in terms of section 98(8) [IC] to postpone the operation of invalidity and,
in terms of section 98(6) [IC], to regulate the consequences of the invalidity, does not detract
from the conclusion that the test for invalidity is an objective one and that the inception of
invalidity of a pre-existing law occurs when the relevant provision of the Constitution came
into operation.44

In some situations, an order based solely on a date will not cover all those cases that the court wishes
the order to affect. In such circumstances, the court will specify the types of cases or people to which
the order applies.45 In the case of S v Bhulwana the court held that her order invalidating a reverse
onus provision would only apply to cases that had not yet been finally decided on appeal, or where
an appeal could still be noted.46

The court had to create an even more detailed remedy to address the difficulties posed by
invalidating provisions dealing with succession. In Bhe & Other v Magistrate, Khayelitsha47the court
invalidated the customary law rule, and accompanying legislation, that provided for male
primogeniture. But it did not want to invalidate transfers that had already been made, provided they
were made in good faith.48

Orders suspending the declaration of invalidity

41
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) [94].
42
I Carrie and J De Waal The Bill of Rights Handbook s 6th edition (2013), 190.
43
Ferreira v Levin NO 1996 (1) SA 984 (CC) [27-28]. See also Fose v Minister of Security (note 28 above) [94] where
Kriegler concurred that in respect of laws, the court ‘finds’ them inconsistent with the Constitution , whereas it ‘declares’
executive or administrative conduct to be unconstitutional. Kriegler J stated that the declaration is merely descriptive of a
pre-existing state of affairs.
44
Ferreira v Levin NO 1996 (1) SA 984 (CC) [27-28].
45
M Bishop, ‘Remedies’ in Woolman and Bishop Constitutional law of South Africa (2014) Volume 1 (2nd ed) Chapter
9; 9-133.
46
S v Bhulwana 1996 (1) SA 388 (CC), 1995 (12) BCLR 1579 (CC) [33-34].
47
2005 (1) BCLR 1 (CC). See also Shibi v Sithole, and South African Human Rights Commission v. President of the
Republic of South Africa, the South African Constitutional Court consolidated three cases, and took up the "constitutional
validity of the principle of primogeniture in the context of the customary law of succession." See also Magaya v Magaya
[1999] 1 ZLR 100.
48
Bishop in Woolman and Bishop Constitutional law of South Africa (2014) (Volume 1) Chapter 9, 9-133.
Section 175(6)(b) of the Constitution of Zimbabwe permits that the Constitutional Court may make
any order that is just and equitable, including an order limiting the retrospective effect of the
declaration of invalidity and order suspending conditionally or unconstitutionally the declaration of
invalidity for any period to allow the competent authority to correct the defect. A court will declare
a provision invalid, but state that the invalidity will come into effect on a future date. 49 It can be
noted that the chief reason for suspension is to give the body responsible for the unconstitutional
provision – normally the Legislature – an opportunity to rectify the defect.50

When a court exercises its suspension powers under section 175(6) (b) of the Constitution, the
legislature is not obliged ‘to rectify’ the law.51 A court’s decision to suspend the effect of an order of
invalidity entails the exercise of a wide power and can be utilised for numerous reasons provided it is
just and equitable to do so.52 This often relates to giving the Legislature time to intervene but could
equally relate to concerns of the effect an order might have on the administration of justice.53
Parliament (or any other competent legislature) may choose to correct the defect in the invalidated
law within the period specified.54 On the other hand, a legislature can equally choose not to correct
the defect, and instead take other steps to address any detrimental effects that may result from the
invalidity.55 It can also be noted that it can choose to ignore the matter altogether, which will mean
that the declaration of invalidity will come into effect on the specified date.56

In an ordinary case, when a suspension order is based on the need to retain the legal position in place
in order to avoid disruption of a legal system, the order will not operate retrospectively.57 In the case
of Mashavha v President of the Republic of South Africa & Others58the Constitutional Court
confirmed that it would not make sense to have a suspension order act retrospectively when it would
cause the precise ill that the court intended to avoid.59

49
Bishop in Woolman and Bishop (above) Constitutional law of South Africa (2014) (Volume 1) Chapter 9, 9-112.
50
Ibid Chapter 9, 9-112.
51
I Carrie and J De Waal The Bill of Rights Handbook s 6th edition (2013), 192.
52
Cross-Border Road Transport Agency v Central African Road Services (Pty) Ltd and Another CCTI63/14[2015]
ZACC 12, 2015 (5) 370 (CC); 2015 (7) BCLR 716 (CC) para 25.
53
Cross-Border Road Transport Agency v Central African Road Services (Pty) Ltd and Another (see note 49 above) at
para 25.
54
Carrie and J De Waal The Bill of Rights Handbook s 6th edition (2013), 192.
55
Carrie and J De Waal The Bill of Rights Handbook s 6th edition (2013 at 192.
56
Executive Council of the Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA 877 (CC)
113.
57
Bishop in Woolman and Bishop Constitutional law of South Africa (2014) (Volume 1) Chapter 9, 9-113.
58
2005 (2) SA 476 (CC), 2004 (12) BCLR 1243 (CC).
59
In the case of Mashavha v President of Republic of South Africa ( see note 55 above) the court declared various
provisions of a presidential proclamation invalid and suspended that invalidity for 18 months without mention, in the
judgement or order, of the retrospective effect. Eighteen months later, the minister responsible for social grants applied to
However, since the birth of the Constitutional Court, the application of common law rule to
applications for leave to appeal to the Constitutional Court, has been somewhat unclear.
Following a literal interpretation of the above rule, it is clear that no statute of parliament exits which
overrides the operation of the common law rule abovementioned. However, the decision of Minister
of Health and Another v New Clicks South Africa60 which reads as follows, has since resolved this
issue:

“The common law rule that execution of a judgement is suspended pending an appeal has no application to
declarations of constitutional invalidity of legislation. If a law is objectively invalid, a declaration of invalidity
made by a competent court that is subsequently set aside on appeal does not validate the law. For the
same reason, an appeal against a declaration of constitutional invalidity of the law does not breathe life into that
law. The objective validity or invalidity of law will ultimately be determined at the end of the appeal process.
That does not mean, however, that courts have no power to temper the effect of orders of
constitutional invalidity made pending the finalisation of the appeal process."

Hence the aforementioned common law rule applies to all applications for leave to
appeal, as well as those to the Constitutional Court, excluding in cases where an appeal
involves matters where declarations of constitutional invalidity of legislation", and the suspension of
the order of the court a quo is relied upon for purposes of "breathing life" into any invalid legislation
the application for leave to appeal to the Constitutional Court does not suspend the operation of the
order of the court a quo.

(Non) confirmation of orders of constitutional invalidity

In terms of section 175 (3) of the Constitution of Zimbabwe any person with a sufficient interest may
appeal, or apply, directly to the Constitutional Court to confirm or vary an order concerning
constitutional validity by a court. Section 31 (1) of Constitutional Court Rules states that the registrar
or clerk, as the case may be, of a court which has made an order of constitutional invalidity as
specified in section 175(1) of the Constitution shall, within fourteen days of the making of such
order, file with the Registrar a copy of the record of proceedings including the court order for
confirmation.61

In S v C (a Juvenile)62 the court held that although section 353 (1) of the Criminal Procedure and
Evidence Act [Cap 9:07] was declared to be constitutionally invalid, in terms of section 167 (3) and

the Court to extend the suspension period. The court refused to extend the period reasoned that the invalidity would
operate only from the date the suspension period expired.
60
(CCT 59/2004) [2005] ZACC 14; 2006 (2) SA 311 (CC); 2006 (1) BCLR 1 (CC) (30 September 2005) para 16.
61
Statutory Instrument 2016-061 Constitutional Court Rules 2016.
62
HH 718-14.
section 175 (1) of the new Constitution it is the Constitutional court which makes the final decision
on whether an Act of Parliament is constitutional. Any order of constitutional invalidity of any law
that is made by another court other than the Constitutional court has no force unless it is confirmed
by the Constitutional court.63

In S v Williams64 the Constitutional Court considered together five cases in which six juveniles were
sentenced to receive a “moderate correction” of a number of strokes with a cane. The Court noted
that consensus had been reached that legal provisions allowing corporal punishment of adults are
inconsistent with the Constitution, but that such consensus had not been reached in relation to
juvenile whipping. The judgment goes on to examine the legality of whipping of juveniles in
relation to the Constitutional provisions on the right to respect for dignity and the prohibition of
cruel, inhuman or degrading treatment or punishment , including with reference to similar
protections in international human rights law and in national legislation in other countries.65 The
Constitutional Court confirmed that juvenile whipping is a violation of the constitutional rights and
declared the law invalid.66

63
S v C (a Juvenile) HH 718-14. See also S v Walter Mufema judgment HH-409-15
64
S v Williams 1995(3) SA 632 (CC). See also Christian Education South Africa v Minister of Education 2000 (4) SA
757 (CC).
65
S v Williams 1995(3) SA 632 (CC) paras 51, 52, 53.
66
S v Williams 1995(3) SA 632 (CC) [91]