The law on when leave of this court to appeal against a decision of a lower court may be granted has been discussed in a number of decisions of this Court: see Bonnyview Estate (Private) Limited v Zimbabwe Platinum Mine (Private) Limited Another CC06-19; Cold Chain (Pvt) Limited ...
The law on when leave of this court to appeal against a decision of a lower court may be granted has been discussed in a number of decisions of this Court: see Bonnyview Estate (Private) Limited v Zimbabwe Platinum Mine (Private) Limited & Another CC06-19; Cold Chain (Pvt) Limited t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC); Chombo v National Prosecuting Authority & Others CC08-22; Ismael v St John's College & Ors CC19-19; TBIC Investments (Private) Limited v Mangenje & Ors CC15-20; Magurure & Others v Cargo Carriers International Hauliers CC15-16; and Chani v Justice Hlekani Mwayera and Others CC02-20.
Leave to appeal is granted if the intended appeal is against a decision of a subordinate court on a constitutional matter.
There is a growing body of law from this Court spelling out that a decision of a subordinate court is on a constitutional matter if the litigation in that court is unavoidably predicated on such a matter. Put differently, the resort to the interpretation, enforcement or protection of the Constitution in resolving the dispute between the parties must have been unavoidable, taking into account the respective applications of the principles of subsidiarity, avoidance, and ripeness.
In addition, this Court has specifically held that the constitutional matter must have been pleaded in the court of first instance, such that the constitutional matter stands out clearly from such pleadings.
Thus, the mere reference to the provisions of the Constitution in the judgment of the lower court, either in passing or as buttressing a common law position or statutory provision, does not trigger the appellate jurisdiction of this Court.
Therefore, where the provisions of the Constitution are resorted to in the judgment a quo as bulwarking or strengthening a common law position or an interpretation of a statute, such reference to the provisions of the Constitution does not, and cannot, thereby form the ratio decidendi of the judgment of the matter.
The ratio decidendi remains the non-constitutional position at common law or as provided for by statute - albeit finding some support from the Constitution....,.
Where the constitutional matter is not specifically pleaded in the court of first instance, but arises during those proceedings or before any other subsequent court, the provisions of section 175(4) of the Constitution set out the procedure by which the matter may be referred to this Court for the purposes, not of determining the matter, but for answering the requisite constitutional question that will assist in the determination of the matter: see Nyika and Another v Minister of Home Affairs and Another CC05-20.
