This is an application for direct access to this Court made in terms of Rule 21 of the Constitutional Court Rules 2016 ("the Rules").
The applicant is Tendai Mashamanda. The first respondent is Bariade Investments (Pvt) Limited, a company duly incorporated in terms of the laws of Zimbabwe. It was the appellant in SC09-20. The second respondent, Puwai Chiutsi, was one of the respondents in SC09-20.
The third respondent, the Registrar of Deeds is a public official appointed in terms of section 4 of the Deeds Registry Act [Chapter 20:05]. The fourth respondent is the Sheriff of the High Court cited as the officer responsible for executing judgments of the High Court.
The fifth respondent, Eliot Rogers, was the fifth respondent in SC09-20.
It is the applicant's case that the Supreme Court, in its determination in SC09-20, infringed several of his constitutional rights. These rights are the following;
(i) The right to the protection of the law which he says is enshrined in section 56(1) of the Constitution;
(ii) The right to a fair hearing in terms of section 69(2) of the Constitution; and
(iii) The right of access to the courts enshrined in terms of section 69(3) of the Constitution.
BACKGROUND
Sometime in 2012, the fifth respondent (Elliot Rogers) obtained judgment in the High Court under HC3331/14 against the second respondent (Puwayi Chiutsi). The court ordered the sale in execution of the second respondent's property known as the remainder of Subdivision C of Lot 6 of Lots 190,191,192,193,194 and 195, Highlands Estate of Welmoed (hereinafter referred to as “the property”).
On 18 September 2017, the first respondent participated in the Sheriff's sale by public auction of the property and was declared the highest bidder after offering to pay USD$270,000.
Thereafter, the second respondent lodged an objection to the confirmation of the sale by the fourth respondent (Sheriff of the High Court) in terms of Rule 359(1) of the High Court Rules 1971 (hereinafter referred to as “the High Court Rules”) and the objection was dismissed.
Subsequently, the second respondent filed a court application under case number HC11349/17 in which he sought the setting aside of the confirmation by the Sheriff of the sale of the disputed property, to the first respondent.
MATHONSI J..., dismissed the application on the basis that the second respondent had conducted himself in a dishonourable and unworthy manner by mis-appropriating trust funds, and that “he had employed every trick in the book to avoid paying his debt” to the fifth respondent.
The second respondent then proceeded, unsuccessfully, to file an urgent chamber application for an interdict against the transfer of the property pending the outcome of the appeal that he had filed.
Notwithstanding the fact that the second respondent had failed to secure an interdict against transfer of the property in question to the first respondent, the latter (Bariade Investments (Pvt) Ltd) submitted it became aware that the second respondent had not only sold the property in question, but had also transferred it into the applicant's name on 8 February 2019 under Deed of Transfer No.708/19.
The fifth respondent (Elliot Rogers) then filed an urgent chamber application under HC1444/19 in which he sought the cancellation of Deed of Transfer No.708/19.
This was on the basis, that, the second respondent's conduct was fraudulent since he had knowingly sold the property which was under judicial attachment without the knowledge of the fourth and fifth respondents (Sheriff of the High Court and Elliot Rogers).
As a result, the fifth respondent argued, the sale in question was null and void.
The court a quo dismissed the application, not on the merits, but on the basis that it could not grant a final order in an urgent chamber application which sought a provisional order.
The fifth respondent went on to appeal to this Court against that decision, and the appeal was heard jointly with the second respondent's appeal.
Thereafter, the first respondent filed an application for the cancellation of Deed of Transfer No.708/19 under HC2620/19.
The court a quo dismissed the application holding that the matter was res judicata because it had already been decided by MANZUNZU J in HC1444/19, a circumstance that rendered the court functus officio.
The court also held, that, a pignus judiciale could not conclusively be considered to have been created over the property in question since the first respondent had not proved the existence of a caveat registered against the title deed in the first respondent's name.
Aggrieved, the first respondent noted an appeal to the Supreme Court ('the court a quo') under case number SC9-20. The argument advanced by the first respondent was that the High Court had erred in coming to the conclusion that the material and live issue of the second respondent's fraud and forgery was not relevant to the just determination of the matter which was before it.
It was the first respondent's further argument, that, the High Court had erred when it came to the conclusion that the judgment of the High Court, per MANZUNZU J, concerned the same subject matter as the application before it.
The first respondent also argued, that, the High Court had erred in not coming to the conclusion that the question of equities was not a live issue before it and that it (the Court) had to determine, instead of, the question of the validity of the sale and transfer to the appellant in view of the pignus judiciale brought about by the attachment in execution.
In disposing of the matter, the court a quo held that the original judgment by MATHONSI J..., had been competently made and that it was an order against the transfer of the property in question otherwise than through the process ordinarily followed after a sale in execution is duly confirmed.
The court a quo went further to hold, that, although the property was still in the second respondent's name, it had ceased to be his to deal with as he wished from the moment that it was attached in execution, and, thereafter, sold to the appellant because of the pignus that was operating against the property.
The court a quo then dealt extensively with the judgment by CHITAPI J under judgment number HH477-21.
In analysing the judgment, the court a quo found that the processes leading to the default judgment granted by CHITAPI J, as well as the order itself, were irregular. That judgment was subsequently reviewed by the court a quo in terms of section 25 of the Supreme Court Act [Chapter 7:13]. The result was that the order of CHITAPI J was vacated.
The applicant was aggrieved and has approached this Court for direct access in terms of section 167(5)(a) of the Constitution of Zimbabwe.
The applicant submits, that, three of his fundamental rights enshrined in Chapter 4 of the Constitution were infringed by the Supreme Court in SC09/20 through judgment number SC24-22.
As already noted, the three rights that the applicant alleges were infringed are the right to the protection of the law as enshrined in terms of section 56(1) of the Constitution, the right to a fair hearing enshrined in section 69(2) of the Constitution, and the right of access to the courts as enshrined in section 69(3) of the Constitution.
The first respondent (Bariade Investments (Pvt) Ltd) has opposed the application and has argued that the applicant lost the appeal on a non-constitutional matter.
The first respondent further argues, that, the court a quo determined the appeal that was before it, prior to dealing with the irregular judgment by invoking section 25 of the Supreme Court Act.
None of the applicant's rights were therefore infringed either by the Supreme Court or by any other person.
It is further argued, that, the provisions of section 25 of the Supreme Court Act are constitutional and that the Supreme Court's action, of invoking that section, are valid.
The fifth respondent (Elliot Rogers) has also opposed the application and his first argument is that the present application is an abuse of court process because the Supreme Court did not infringe any of the applicant's rights in its determination.
He further contends, that, the court a quo acted within its jurisdiction, and that it exercised its review powers according to section 25(2) of the Supreme Court Act.
He further submits, that, a pignus judiciale is a recognized part of our law.
PROCEEDINGS IN THIS COURT
Counsel for the applicant argued, that, it is now trite in this jurisdiction that a party cannot challenge a decision of the Supreme Court on the basis that it was wrong. However, a Supreme Court decision can infringe a party's rights in the manner in which it determines the matter.
He submitted, that, the Supreme Court infringed the applicant's right to equal protection of the law in terms of section 56(1) of the Constitution, the right to a fair hearing in section 69(2), and the right of access to the courts as enshrined in section 69(3) of the Constitution.
Counsel for the applicant further argued, that, the Supreme Court acted without jurisdiction when it set aside the High Court's decision under judgment number HH477-21. He argued that the effect of CHITAPI J's judgment rendered the appeal moot.
According to the applicant, the setting aside of the High Court's decision was unprocedural as the Supreme Court acted outside the record.
It was the applicant's further argument, that, the Supreme Court had erroneously invoked its review authority under section 25(2) of the Supreme Court Act [Chapter 7:13] in reviewing a default judgment.
This, it was submitted, is contrary to its review powers.
It was the applicant's argument that a default judgement cannot be reviewed under the limited review powers granted to the Supreme Court.
Counsel for the applicant further argued, that, the Supreme Court applied a non-existent law.
Whilst the law holds that the Supreme Court cannot be wrong; it cannot, however, invent a law and must always seek to apply an existing law.
Per contra, counsel for the first respondent raised a preliminary point, that, the applicant did not have locus standi to challenge the section 25(2) of the Supreme Court Act portion of the judgment of the Supreme Court.
It was his argument that the judgment dealt with a long-standing dispute regarding execution which had started in 2017 and was completed in 2018. Counsel for the first respondent submitted, that, the applicant only came into the picture in 2019. He further argued, that, in the circumstances, having a financial interest did not endow the applicant with the necessary locus standi.
In response to the point in limine raised by the first and fifth respondents, counsel for the applicant submitted that such an argument was a misdirection. He submitted that the applicant had locus standi on the basis that the Supreme Court infringed his rights in terms of section 56(1), section 69(2) and (3) of the Constitution.
On the merits, counsel for the first respondent submitted that there were no prospects of success in this matter.
He argued that there was no law that was raised by the applicant that would have protected the allegedly infringed rights. Counsel for the first respondent further argued, that, the Supreme Court provided ample authority for the view that a property subject to a pignus judiciale could not be sold.
He argued that the decision made by the Supreme Court was therefore not novel, and, accordingly, the argument by the applicant lacked merit.
He further argued, that, the applicant's submission that a default judgment cannot be reviewed was based on an entirely misplaced principle.
He stated that there was no principle that disabled the review of a default judgement.
Counsel for the first respondent further stated, that, section 25 of the Supreme Court Act gave the Supreme Court the jurisdiction to act in the manner it did. It was his contention that the question of review was addressed and that none of the parties in the Supreme Court were willing to defend the default judgment granted by CHITAPI J.
Counsel for the fifth respondent associated herself with the preliminary point raised by the first respondent in relation to the applicant's locus standi to bring the application.
On the merits, she submitted that the application could not succeed as articulated by the first respondent.
However, she added that the content of the right in section 18(1) of the old Constitution now appears and is subsumed in and under numerous other provisions of the current Constitution which are, for example, section 68, section 69 and section 70. She argued that it is these sections that continue to give life to the right previously protected in section 18(1) of the old Constitution.
She further argued, that, very minimal submissions had been made by the applicant in impugning section 25(2) of the Supreme Court Act.
She submitted, that, the impugned provision would remain valid until declared unconstitutional. She submitted that it was trite in this jurisdiction, that, a court will not readily declare a provision unconstitutional.
It was her argument, therefore, that, if there is an alternative interpretation that avoids declaring a provision invalid, the Court ought to follow that approach.
In the circumstances, she argued that there needed to be more substantial arguments made than a mere reference to constitutional invalidity contained in two paragraphs....,.
ISSUE FOR DETERMINATION
The sole issue that arises for determination in this application is whether or not it is in the interest of justice to grant direct access to this Court.
Applications of this nature are regulated by the rules of this Court. The applicant therefore has to first satisfy the requirements as set out in Rule 21(3) of the Constitutional Court Rules.
It was stated in Liberal Democrats & Ors v The President of the Republic of Zimbabwe E.D. Mngangagwa N.O. & Ors CC07-18…, as follows:
“…, direct access to the Constitutional Court is an extraordinary procedure granted in deserving cases that meet the requirements prescribed by the relevant Rules of the Court.”
Rule 21(3) of the Constitutional Court Rules contains the requirements that ought to be satisfied in an application of this nature. It states the following:
“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out —
(a) The grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and
(b) The nature of the relief sought and the grounds upon which such relief is based; and
(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence, or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”…,.
CURRIE I and De WAAL J in “The Bill of Rights Handbook” 6th edn, Juta & Co (Pty) Ltd, Cape Town, 2013…, discuss the importance of the requirement that an applicant should show that it is in the interest of justice that the application be granted. They state as follows:
“Direct access is an extraordinary procedure that has granted by the Constitutional Court in only a handful of cases….,.
The Constitutional Court is the highest court on all constitutional matters.
If constitutional matters could be brought directly to it as a matter of course, the Constitutional Court could be called upon to deal with disputed facts on which evidence might be necessary, to decide constitutional issues which are not decisive of the litigation and which might prove to be of purely academic interest, and to hear cases without the benefit of the views of other courts having constitutional jurisdiction.
Moreover, it is not ordinarily in the interests of justice for a court to sit as a court of first and last instance, in which matters are decided without there being any possibility of appealing against the decision given.”
It is settled law that the appellate jurisdiction of the Constitutional Court is triggered only where a constitutional matter arose in the court a quo and was decided by that court: see Sadziwani v Natpak (Private) Limited & Ors CC15-19…,.
Section 332 of the Constitution defines a constitutional matter as “a matter in which there is an issue involving the interpretation, protection or enforcement of this Constitution.”
The jurisdictional effect of the definition of a constitutional matter was discussed in Moyo v Sergeant Chacha and Ors CC19-17…, as follows:
“The import of the definition of 'constitutional matter' is that the Constitutional Court would be generally concerned with the determination of matters raising questions of law, the resolution of which require the interpretation, protection, or enforcement of the Constitution.
The Constitutional Court has no competence to hear and determine issues that do not involve the interpretation or enforcement of the Constitution or are not connected with a decision on issues involving the interpretation, protection or enforcement of the Constitution.”
It also ought to be noted, that, the mere citation of constitutional provisions or alleged infringements of constitutional rights does not mean that a constitutional issue has been raised.
In Magurure and Ors v Cargo Carriers International Hauliers (Pvt) Ltd t/a Sabot CC15-16 the Court had occasion to deal with this aspect. It stated as follows…,.:
“Have the applicants brought to the Court for determination a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution?
The fact that the applicants allege that the respondent has, by the conduct it is alleged to have committed, infringed their fundamental right to fair and safe labour practices enshrined in section 65(1) of the Constitution does not mean that they have raised a constitutional matter.
It is for the Court to decide whether the determination of the legality of the conduct of the respondent, if proved, would require the interpretation and application of section 65(1) of the Constitution.”
The applicant in casu merely challenges the correctness of the findings made by the court a quo but no constitutional issues arise therefrom.
In The Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC)…, the Court discussed the test to be applied in determining whether or not the court a quo determined a constitutional matter. It held as follows:
“The principles to be applied in the determination of the question whether the Supreme Court determined a constitutional matter are clear. It is not one of those principles that the court against whose judgment leave to appeal is sought should have referred to a provision of the Constitution.
There ought to have been a need for the subordinate court to interpret, protect or enforce the Constitution in the resolution of the issue or issues raised by the parties. The constitutional question must have been properly raised in the court below. Thus, the issue must be presented before the court of first instance and raised again at or at least be passed upon by the Supreme Court, if one was taken.”…,.
The applicant's further grievance appertains to the manner in which the court a quo handled the matter.
His argument was that the court acted without jurisdiction which was then contrary to a fair hearing under section 69(2) of the Constitution and a mockery of the right of access to the courts as protected by section 69(3) of the Constitution.
The applicant further argued, that, determining a matter under section 25(2) of the Supreme Court Act, without hearing the parties on whether the section was applicable in the circumstances, is a clear infringement under section 69(2) and (3) of the Constitution.
The applicant's contention is that the court a quo acted without jurisdiction when it set aside the decision of CHITAPI J under HH477-21.
The judgment under HH477/21 was a default judgment which set aside the decision by MATHONSI J…, under HH604-18 which had endorsed the confirmation of the sale of the contested property by the Sheriff.
The court a quo found that the determination by CHITAPI J was not consistent with what had been sought by the parties and invoked the powers of review under section 25 of the Supreme Court Act.
The Supreme Court Act confers upon the Supreme Court various powers, and, one such provision is section 25. The section provides as follows:
“REVIEW POWERS
1. Subject to this section, the Supreme Court and every judge of the Supreme Court shall have the same power, jurisdiction, and authority as are vested in the High Court and the judges of the High Court, respectively, to review the proceedings and decisions of inferior courts of justice, tribunals, and administrative authorities.
2. The power, jurisdiction and authority conferred by subs (1) may be exercised whenever it comes to the notice of the Supreme Court, or a judge of the Supreme Court, that an irregularity has occurred in any proceedings or in making of any decision notwithstanding that such proceedings are, or such decision is, not the subject of an appeal or application to the Supreme Court.”…,.
From a reading of the above provision, the Supreme Court has the power to review decisions of lower courts. These powers are anchored by the provisions of section 169(2) of the Constitution which provides thus:
“Subject to subsection (1), an Act of Parliament may confer additional jurisdiction and powers on the Supreme Court.”
As observed in the case of Chombo v National Prosecuting Authority & Ors SC158–21, the Supreme Court's power of review has always been there and that power has been made use of in this jurisdiction since time immemorial.
The powers of review can be invoked by a court mero motu whenever an irregularity has come to the court's attention.
The applicability of section 25 of the Supreme Court Act was extensively canvassed in the case of PG Industries Zimbabwe (Pvt) Ltd v Bvekerwa & Ors SC53-16…, wherein it was stated:
"In terms of section 25(2), this court is imbued with powers to set aside proceedings that are irregular even if those proceedings are not the subject of an appeal or application before the court. I am fortified in this view by the remarks of ZIYAMBI JA in The Chairman Zimbabwe Electoral Commission & 2 Ors v Roy Bennet & Anor SC48-05 as follows:
'Section 25(2) confers additional jurisdiction which may be exercised when it comes to the notice of the Supreme Court, or a judge of that court, that an irregularity has occurred in proceedings not before it on appeal or application. Thus, section 25(2) deals with irregularities in respect of which no appeal or application is before the Supreme Court and the review is undertaken at the instance of the Supreme Court and not of any litigant.'”
The Supreme Court has mostly recently exercised this power of review by setting aside decisions of the High Court: see MDC & Ors v Timveos & Ors SC09-22.
What the court a quo did in casu was not any different from what the Supreme Court has been empowered to do.
An irregularity occurred and then it came to the attention of the court. Acting in terms of the powers conferred upon it, in terms of section 25(2) of the Supreme Court Act, the court a quo duly exercised its powers and set the decision aside.
The court a quo acted in terms of the law.
The review powers do not require the court to invite parties to first make submissions before the court makes a decision, although the court will ordinarily bring to the attention of the parties the irregularity, which it duly did in this case (and none of the parties were prepared to support the irregularity).
The court simply makes a determination mero motu after noticing an irregularity and alerting the parties to it were possible.
The court a quo, in exercising its review powers, cannot, in the circumstances, be said to have violated the applicant's right to a fair hearing and access to the courts. The right to a fair hearing was not violated neither was the right of access to court.
The application has no prospects of success in that regard.
