Constitutional Application re: Fundamental Rights iro Approach, Direct Access, Referral, Locus Standi and Jurisdiction

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE
Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

In terms of section 175(4) of the Constitution, the relevant court may refuse the request for referral by the parties if it considers such an application to be frivolous or vexatious.It is apparent that the presiding judicial officer is endowed with limited discretion in the matter....,.The import of the term ...

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE
Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

On 25 January 2022, the applicant filed an application seeking direct access to this Court in terms of section 167(5)(a) of the Constitution of Zimbabwe 2013 (“the Constitution”) as read with Rule 21(2) of the Constitutional Court Rules 2016 (“the Rules).

If leave is granted, it is his intention to file an application in terms of section 85(1) of the Constitution for the vindication of two of the fundamental rights that he alleges were violated by a High Court decision.

The two fundamental rights in question are the right to access the courts and the right to equal protection and the benefit of the law, respectively.

The allegation made in the application is that the common law remedy that permits execution of a judgment pending appeal violates the Constitution.

FACTUAL BACKGROUND

The respondent is a common law universitas that is governed by its constitution. It is a church with various stations throughout the country. The applicant is a former member of the respondent's executive leadership structure.

The facts surrounding this dispute are mostly common cause.

Over an extended period of time, the respondent's executive, which included the applicant, wrangled over the control of the respondent and its assets. The dispute spilled into the courts, initially the High Court. The High Court found in favour of the other members of the executive and declared them as the duly authorised representatives of the respondent. It also gave them the right to possess and control the assets in dispute.

The applicant was aggrieved. He noted an appeal to the Supreme Court.

On 28 May 2021, the Supreme Court rendered its judgment in which it upheld the judgment of the High Court. The court determined, that, the other members of the executive were the duly authorised representatives of the respondent. The applicant was ordered to pay costs.

At the core of the dispute was the right to occupy Stand 696 New Ardlyn, Westgate, Harare. This property had previously been under the stewardship of the applicant.

Consequent to the Supreme Court's decision, the applicant and his acolytes voluntarily departed from Stand 696 New Ardlyn, Westgate, Harare. However, on 11 October 2021, the applicant returned and unlawfully appropriated the aforesaid premises from the respondent's elected officials.

An application for a mandament van spolie was filed by the respondent, under a certificate of urgency, for the ejection of the applicant from the premises. The application succeeded. The High Court ordered that the applicant be ejected and that the possession thereof be restored to the respondent's executives.

Aggrieved with the decision of the High Court, the applicant appealed to the Supreme Court. In response, the respondent, under HC6465/21, applied for leave to execute the judgment pending the determination of the appeal.

During the hearing of the application for leave to execute the judgment pending appeal, the applicant made an application for a referral to this Court of a constitutional question on the basis of certain constitutional issues that he alleged emanated from the matter.

The crux of his challenge was whether the common law remedy of execution pending appeal was consistent with the Constitution.

The application was opposed by the respondent. It argued that the request was frivolous and vexatious. It contended that there was no violation of any constitutional provisions in the intended application for relief before the High Court.

On 13 January 2022, the High Court rendered its judgment on the application for a referral of the matter to the Constitutional Court.

The court a quo refused the application. It ruled that it lacked merit.

The court a quo reasoned, further, that, there was nothing unconstitutional for a court to order the execution of its own judgment pending appeal as the law permitted this exercise of discretion on the part of the High Court. It thereafter proceeded to determine the merits of the respondent's application for execution pending appeal.

The court a quo noted, that, the applicant had previously vacated the premises in question in compliance with an order of court. However, he had reclaimed control through violent means, and, as a consequence, the noting of the appeal was meant to deny the respondent's representatives access to the property in question whilst he contested the right to control the assets of the respondent.

It is that determination which forms the basis of the present application that is before the Court.

In casu, the applicant seeks to challenge the determination by the High Court. He avers that its decision was wrongful because his request was neither frivolous nor vexatious. It is submitted, on his behalf, that, the prospective substantive application enjoys considerable prospects of success.

The application is opposed.

The respondent submits, that, the present application is frivolous and vexatious. It avers that its effect is meant to frustrate the effect of various judgments that have been granted against the applicant.

The major part of the reasons for opposing the application constitute legal argument, which I will advert to later in the judgment.

APPLICANT'S SUBMISSIONS BEFORE THIS COURT

The applicant advances the argument, that, once an appeal is before the Supreme Court, the court a quo ceases to have jurisdiction over the matter.

He contends, that, this is the essence of section 162 of the Constitution as read with sections 168 and 169 thereof.

It is contended on his behalf, that, the common law rule of execution pending appeal runs contrary to the principle of law that only the Supreme Court has power over its own rules and orders.

In addition, the applicant argues that the established hierarchy of the Courts is disrupted by the common law remedy, which enables the High Court to determine a matter pending before the Supreme Court.

He submits, that, the High Court would, on that premise, be taking sides in the appeal under the guise of determining the prospects of success.

The applicant posits, that, in that process, the right of access to the appellate court is impinged upon by the interference of the High Court.

Despite the right of appeal against any determination by the High Court, the applicant submits that there is no alternative remedy available to him.

Counsel for the applicant submitted, that, the applicant's constitutional rights were violated by the High Court's refusal to refer the constitutional question to the Constitutional Court.

Questioned by the Court as to whether the applicant was challenging the procedural or substantive propriety of the court a quo's decision, he submitted that there was no distinction between the two.

He asserted, that, the established jurisprudence of the Court merely highlighted that once a wrong decision has been made, it can be challenged both procedurally and substantively in a superior court. According to him, the only permissible exception is a Supreme Court decision due to its status as a final decision of the apex court in non-constitutional matters.

Counsel for the applicant submitted, further, that, the court a quo did not apply the established test under section 175(4) of the Constitution to determine whether the application for referral was frivolous or vexatious.

He made reference to the judge a quo's alleged failure to explicitly state whether the application was frivolous or vexatious as evidence of a wrong approach that ultimately led to a wrong decision.

It was contended, that, the constitutional issue of the High Court's jurisdiction to determine applications for leave to execute pending appeals was not addressed and that the matter was neither frivolous nor vexatious.

In response to the Court's question as to whether there was an adherence to the Rules in respect of the application filed before the High Court, counsel for the applicant submitted, that, Rule 24(4) of the Constitutional Court Rules 2016 did not apply as there were no disputes of fact between the parties.

He contended, further, that, the applicant's right to access under section 69(3) of the Constitution was violated by the law which gives the High Court the power to determine applications for leave to execute pending appeals.

Counsel for the applicant added, that, given that the Supreme Court becomes seized with a matter upon the noting of an appeal, it is befitting that this Court decides the issue of which court had jurisdiction over such an application.

In discourse with counsel, the Court noted that the High Court was not disabled by any law from entertaining applications for leave to execute pending an appeal.

The Court further quizzed counsel on the issue of an alternative remedy available to the applicant.

Counsel for the applicant conceded, that, the applicant could have sought leave to appeal against the decision by the High Court.

However, he submitted that the remedy was not practical as the same arguments would be regurgitated in the High Court and Supreme Court on appeal.

Counsel for the applicant countered by proposing, that, in the event the High Court's present authority was held as being unconstitutional, the Court was at large to utilise its just and equitable powers, under section 175(6) of the Constitution, to ensure that the legislature is given adequate time to address the lacuna that would arise as a result of its determination in the applicant's favour.

Counsel for the applicant argued, that, the respondent had not addressed the Court on whether or not there was an infringement of the right of access to a court under section 69(3) of the Constitution.

He submitted, that, the question was important as it brings into focus the issue as to whether the court a quo's determination rendered the appeal in the Supreme Court academic.

Counsel for the applicant reiterated that the applicant was challenging the authority of the lower court to deal with a matter that was pending before the Supreme Court.

He reasoned, that, alternatively placing the application before a different Judge in the High Court would suggest a concession that the alternative remedy was readily accessible.

RESPONDENT'S SUBMISSIONS

Per contra, counsel for the respondent submitted, that, there was a pending matter in the Supreme Court on the substance of the dispute between the parties.

However, he abandoned this line of argument after the Court pointed out that the question of the jurisdiction of the High Court was not pending before the Supreme Court.

In addition to the above, counsel submitted that there was an alternative remedy accessible to the applicant.

He asserted that the applicant's fears that the High Court would revisit its earlier decision could have been allayed by a request to place the matter before a different Judge. Thus, he reasoned that the applicant ought to be disabled from challenging the judgment of the court a quo before the Constitutional Court.

On behalf of the respondent, counsel argued that the grant of the present application would not be consonant with the interests of justice. He submitted, that, both the High Court and the Supreme Court have already decided the validity of the applicant's leadership credentials within the respondent.

In addition to the above, the respondent reasoned, that, the application for referral and leave to execute pending appeal were made in light of an order for spoliation granted against the applicant.

Counsel submitted, that, the balance of convenience favours the preservation of the status quo ante that existed before the applicant took matters into his own hands after he had voluntarily vacated the premises before again depriving the respondent's congregants of the same.

The respondent contended, that, the substantive application bears little, if any, prospects of success on the merits.

The contention made was that the determination of an application for leave to execute pending appeal by the High Court does not limit the jurisdiction of the Supreme Court to properly determine the matter on appeal.

In this regard, counsel for the respondent submitted, that, the applicant's right to access the Supreme Court was not affected by the High Court's decision ordering the execution of its own judgment pending appeal.

In addition, he contended that the hierarchy of the courts is not distorted by the grant of an application for leave to execute.

He stressed that the rights under sections 56(1) and 69(3) of the Constitution are not absolute.

Counsel argued strongly, that, the applicant had an obvious mis-apprehension of the law in suggesting that the application by the High Court of section 176 of the Constitution, to regulate its processes, violates the aforesaid fundamental rights.

He further submitted, that, the present proceedings are part of the applicant's strategy to unduly frustrate the respondent's administration of its operations and assets.

The contention by the applicant, that there is no alternative remedy, was also disputed.

Counsel for the respondent suggested, that, the Supreme Court is in a position to determine the substantive rights of the parties irrespective of the order for execution pending the appeal.

The respondent contended, that, the applicant had refrained from exposing the entire factual background of the dispute because it highlighted his deplorable conduct.

On the question of the alleged infringement of section 69(3) of the Constitution, counsel for the respondent submitted, that, the court a quo's determination did not constitute a diminution of the Supreme Court's authority over the appeal lodged by the applicant.

He argued, that, the High Court considered, as a factor, the balance of convenience in such applications when there was a need for it to regulate its own processes.

In addition, counsel for the respondent insisted that the court a quo's determination could only be challenged where a procedural irregularity was evident.

APPLICATIONS FOR DIRECT ACCESS UNDER RULE 21

An application for direct access to the Court is premised on the provisions of section 167(5)(a) of the Constitution. The section requires that the application be brought in terms of the rules of the Court. Rule 21(2) of the Constitutional Court Rules is relevant.

The principles governing applications for direct access are contained in Rule 21(3) of the Constitutional Court Rules which reads as follows:

“(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.”

The importance of compliance with the rules of this Court in an application for direct access to the Court was stressed in the case of Liberal Democrats & Ors v President of The Republic of Zimbabwe E.D. Mnangagwa N.O. & Ors CC07-18, wherein MALABA CJ advanced the following:

“An application for direct access is regulated by the Rules. An applicant has to satisfy all the requirements of the Rules. The Court found that the applicants failed to comply with the Rules in this regard. There has to be actual compliance with the contents of the provisions of the applicable Rule. It is not a question of mere formality. 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.”…,.

Section 167(5) of the Constitution provides, that, any person may bring a constitutional matter before the court, directly, subject to the Rules of the court.

The jurisdiction of the court, in considering an application for leave for direct access under the section can only be triggered when the court is satisfied that the matter is in the interests of justice.

Rule 21(8) of the Constitutional Court Rules sets out the factors that the court may consider in determining the phrase “interests of justice”: see Mwoyounotsva v Zimbabwe National Water Authority CC17-20…,.

The Rule reads as follows:

“In determining whether or not it is in the interest of justice for a matter to be brought directly to the Court, the Court or Judge, may, in addition to any other relevant consideration, take the following into account —

(a) The prospects of success if direct access is granted;
(b) Whether the applicant has any other remedy available to her;
(c) Whether there are disputes of fact in the matter.”

See also Chiwaridzo v TM Supermarkets (Private) Limited & Ors CC19-20…,.

The Constitution limits the Court's jurisdiction, and, under section 167(2)(b), it is only empowered to preside over and determine constitutional matters and issues connected with decisions on constitutional matters.

Thus, the exercise of its jurisdiction over other matters that do not have the flavour of “a constitutional matter” would be an illegality under the law.

The court, therefore, must ensure that only those matters that can pass muster as a constitutional matter are placed before it. This has been referred to as a sifting mechanism to protect the court from unwarranted matters finding their way to the court's corridors.

The special jurisdiction of the court has been re-affirmed by a plethora of authorities.

The learned authors I. CURRIE and J. De WAAL, in their book The Bill of Rights Handbook, 6th Edition (Cape Town: Juta & Company, 2013)…, state that:

“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 purely academic interest, and to hear cases without the benefit of the views of other courts having constitutional jurisdiction. Moreover, according to the Constitutional Court, 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.”

Turning to this jurisdiction, in the case of Denhere v Denhere & Anor CC09-19..., this Court held that:

“The underlying requirement is that the application ought to clearly illustrate that it is in the interests of justice that an order for direct access be granted. As was noted by the Court in the Lytton Investments (Private) Limited case supra, the filtering mechanism for leave for direct access effectively prevents abuse of the remedy.”

The present application will therefore be assessed in light of the above considerations.

The aforementioned factors will be considered cumulatively in order to ascertain whether or not it is in the interests of justice to grant the applicant direct access to this Court's jurisdiction.

This approach was re-affirmed in the case of Zimbabwe Development Party & Anor v President of The Republic of Zimbabwe & Ors CC03-18…, as follows:

“The correct approach in dealing with an application for an order of direct access to the Court is one that accepts the principle, that, all relevant factors required to be taken into account must be made available for consideration. The Court or Judge must consider all the relevant factors in deciding the question whether the interests of justice would be served by an order granting direct access to the court. The weight placed on the different factors in the process of decision making will depend on the circumstances of each case and the broader interests of a society governed by the rule of law.”

WHETHER OR NOT THE APPLICATION TO CHALLENGE THE DISCRETION OF THE HIGH COURT IS IN THE INTERESTS OF JUSTICE

The prospects of success in the intended substantive application constitute an important and fundamental consideration that principally informs the court's decision on whether or not to grant direct access.

In Mvududu v Agricultural and Rural Development Authority (ARDA) & Anor CC10-21, the court highlighted the importance of assessing the prospects of success as follows:

“One of the factors for consideration by the court is whether or not the application has prospects of success. In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Limited and Another CC11-18, the court stated:

'The court turns to determine the question whether the applicant has shown that direct access to it is in the interests of justice. Two factors have to be satisfied. The first is that the applicant must state facts or grounds, in the founding affidavit, the consideration of which would lead to the finding that it is in the interests of justice to have the constitutional matter placed before the court directly, instead of it being heard and determined by a lower court with concurrent jurisdiction. The second factor is that the applicant must set out, in the founding affidavit, facts or grounds that show that the main application has prospects of success should direct access be granted.'”

The application is premised on an alleged violation of the applicant's rights by the High Court.

The jurisdiction of this Court is restricted by the Constitution itself. As a consequence, the court is disabled, by law, from adjudicating on matters that are not in keeping with its jurisdictional competence.

In casu, the applicant's complaint on the determination handed down by the court a quo, in granting leave to execute, relates to the constitutionality of the remedy. He summarises the issues as being:

“Whether or not the High Court's common law jurisdiction to order an execution of its judgment pending an appeal already pending in the Supreme Court:

(a) Is consistent with the hierarchy of courts provided for in section 162 of the Constitution of Zimbabwe 2013.

(b) Involving as it does, a lower court determining the prospects of success of an appeal already before a superior court, is consistent with the mandatory duty of the courts to be impartial as provided for in subsections 1 and 2 of section 164 of the Constitution of Zimbabwe 2013.

(c) Involving as it does a lower court determining the prospects of success of an appeal already before a superior court is consistent with the fundamental right of every person to a fair hearing enshrined in section 69(2) as read with section 3(1)(b) of the Constitution of Zimbabwe 2013.

(d) Involving as it does a lower court determining the prospects of success of an appeal already before a superior court is consistent with the fundamental right of every person to access to the courts enshrined in section 69(3) as read with section 3(1)(b) of the Constitution of Zimbabwe 2013.”

The applicant has challenged the inherent power of the High Court to regulate its own processes, that is, to cause the suspension of, or, as the case may be, the enforcement of its own judgments pending an appeal before the Supreme Court.

In paragraph 7 of the draft order sought, the applicant seeks an order declaring that it is the Supreme Court, in the exercise of its inherent jurisdiction, that has the power to regulate its processes and that it may, in exceptional cases, order the execution of a judgment appealed against pending the determination of an appeal before it.

In my view, the issue that arises is: how the Supreme Court assumes the power to order the execution of a judgment that did not emanate from itself?

It is pertinent, therefore, to consider and examine the respective powers of the High Court and the Supreme Court and the extent thereof insofar as the execution of judgments pending an appeal is concerned.

THE INHERENT JURISDICTION OF THE SUPERIOR COURTS

The Supreme Court and the High Court are both Superior Courts. These courts have inherent power to regulate their processes in respect of matters that come before them, subject to limitations imposed on them by the common law or by statute.

Even though the Supreme Court is a superior court, it is a creature of statute. Its jurisdiction and the ambit of its powers are governed by the Constitution and the Supreme Court Act [Chapter 7:13]. Section 169(1) of the Constitution spells out the jurisdiction of the Supreme Court. It provides as follows:

“169 Jurisdiction of Supreme Court

(1) The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.

(2) Subject to subsection (1), an Act of Parliament may confer additional jurisdiction and powers on the Supreme Court.

(3) An Act of Parliament may provide for the exercise of jurisdiction by the Supreme Court, and, for that purpose, may confer the power to make rules of court.

(4) n/a”

In terms of sub-section (3) above, the jurisdiction of the Supreme Court, in civil appeals, is set out in section 21 of the Supreme Court Act. It provides as follows:

“21 Jurisdiction in appeals in civil cases

The Supreme Court shall have jurisdiction to hear and determine an appeal in any civil case from the judgment of any court or tribunal from which, in terms of any other enactment, an appeal lies to the Supreme Court.

Unless provision to the contrary is made in any other enactment, the Supreme Court shall hear and determine and shall exercise powers in respect of an appeal referred to in subsection (1) in accordance with this Act.”

I turn next to consider the jurisdictional ambit of the High Court.

Section 171 of the Constitution provides:

“170 High Court

(not relevant)

171 Jurisdiction of High Court

(1) The High Court —

(a) Has original jurisdiction over all civil and criminal matters throughout Zimbabwe;

(b) Has jurisdiction to supervise magistrates courts and other subordinate courts and to review their decisions;

(c) May decide constitutional matters, except those that only the Constitutional Court may decide; and

(d) Has such appellate jurisdiction as may be conferred on it by an Act of Parliament.

(2) An Act of Parliament may provide for the exercise of jurisdiction by the High Court and for the exercise of jurisdiction by the High Court and for that purpose may confer the power to make rules of court.”

The clear distinction between the High Court and the Supreme Court is evident from a reading of the provisions of the Constitution itself.

Whilst the High Court is said to be a court with original jurisdiction over all civil and criminal matters throughout Zimbabwe, the Supreme Court is, on the other hand, the highest court of appeal on matters - excluding constitutional matters.

It is obvious, therefore, that the jurisdiction of the Supreme Court is restricted to that established by the Constitution itself. This, however, must not be understood to mean that it is confined to the determination of appeals only.

Section 176 of the Constitution has confirmed the common law principle that Superior Courts have inherent power to regulate their own processes.

That section provides as follows:

“176 Inherent powers of the Constitutional Court, the Supreme Court and the High Court

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.”

The applicant contends, rightly so in my view, that the Supreme Court has inherent jurisdiction and the power to control its processes. It is a jurisdiction that the court exercises when it is seized with a process that is directly linked to matters that are pending before it.

The exercise of the inherent power to control its processes was clarified by the court in Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S). At 280-282, His Lordship CHIDYAUSIKU CJ stated:

"The first issue to be resolved is whether I have jurisdiction to entertain this Chamber application. This application is not one that involves original jurisdiction. It is ancillary to two appeals this court is already seized with. Once this court is seized with a matter, it has inherent jurisdiction to control its judgment: see South Cape Corporation v Engineering Management Services 1977 (3) SA 534 and the cases referred to in that case.

The inherent jurisdiction to control the court's judgment includes, in my view, jurisdiction to control the court's process, that is, jurisdiction to determine whether or not the execution of a judgment should be permitted pending the hearing of an appeal.

I will assume jurisdiction in this case on that basis.

I can also assume jurisdiction in terms of section 25 of the Supreme Court Act [Chapter 7:13]. I shall revert to this proposition later.

It is trite, that, at common law, a party cannot execute a judgment appealed against: see South Cape Corporation supra. The party wishing to execute despite the appeal can, however, approach the court a quo, if it has such jurisdiction, for leave to execute despite the noting of an appeal.

In the present case, the employees simply sought execution after registering the award without first seeking leave of the court to do so. The employer sought, unsuccessfully, an order from the High Court to stop the execution. The employees, after registering the arbitrator's award with the High Court, should have applied for leave to execute after the noting of an appeal.”

What emerges from the above is that the Supreme Court, in the exercise of its inherent power to control its own processes, can interfere in the process of the execution of a judgment on a matter pending before it on appeal.

The power of the Supreme Court to have recourse to its inherent power under the common law was confirmed in Universal City Studios Inc & Ors v Network Video (Pty) Ltd 1986 (2) SA 734 (A)…,. The Appellate Division of South Africa re-affirmed that the Supreme Court had the power to regulate its own procedures. The court stated:

“There is no doubt that the Supreme Court possesses an inherent reservoir of power to regulate its procedures in the interests of the proper administration of justice: see Stuart v Ismail 1942 AD 327; Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A) at 783A-G; also Ex parte Millsite Investment Co (Pty) Ltd 1965 (2) SA 582 (T) H at 585-6; Moulded Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis and Another 1979 (2) SA 457 (W) at 461F-462H.

It is probably true, that, as remarked in the Cerebos Food case (at 173E), the Court does not have an inherent power to create substantive law, but, the dividing line between substantive and adjectival law is not always an easy one to draw: cf Minister of the Interior and Another v Harris and Others 1952 (4) SA 769 (A) at 781C-H; Botes v Van Deventer 1966 (3) SA 182 (A) at 198H; Yew Bon Tew v Kenderaan Bas Mara [1982] 3 All ER 833 (PC) at 836B; Salmond Jurisprudence 11th ed at 503-4; Paton Jurisprudence 4th ed para 127.

Salmond (op cit at 504) states that:

'Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained.'”

The applicant, however, contends that the power that inheres in the Supreme Court, to control its processes, is wider than merely granting a stay of execution and includes the discretion to determine an application for leave to execute a judgment of the High Court where an appeal has been filed.

This power, contends the applicant, is found in the provisions of section 176 of the Constitution.

The common rule of practice is that the noting of an appeal against a judgment of the High Court automatically suspends the judgment, and, as a result, no execution against that judgment shall take place.

Any execution against the judgment is unlawful and of no legal force or effect.

The position on the execution of judgments pending appeal under the common law was settled in Reid & Another v Godart & Another 1938 AD 511, where DE VILLIERS JA..., said:

"Now, by the Roman-Dutch law the execution of all judgments is suspended upon the noting of an appeal; that is to say, the judgment cannot be carried out, and no effect can be given thereto, whether the judgment be one for money (on which a writ can be issued and levy made) or for any other thing or for any form of relief granted by the Court appealed from.

That being so, I see no reason why the Rule should be confined to judgments on which a sheriff may levy execution.

The foundation of the common law rule, as to the suspension of a judgment on the noting of an appeal, is to prevent irreparable damage from being done to the intending appellant, whether such damage be done by a levy under a writ, or by the execution of the judgment in any other manner appropriate to the nature of the judgment appealed from."

The learned Judge went on to hold -

"…, that irreparable damage might be done to the applicants if the judgment were not suspended on the noting of the appeal, for the estate of the testator might be distributed by an executor in terms of the previous will. The damage would be as irreparable as in a case where a levy is made under a writ."

This Court is not, however, seized with the issue of the stay of a judgment pending appeal, but, rather, with the execution of such judgment upon application by the judgment creditor.

The burning issue is whether or not the power of the court, the High Court, that granted the judgment has now been ousted by section 176 of the Constitution.

The seminal authority under Roman Dutch law, as to which court can determine such an application, is South Cape Corporation v Engineering Management Services 1977 (3) SA 534 in which CORBETT JA said…,.:

“Whatever the true position may have been in the Dutch courts, and, more particularly, the Court of Holland (as to which see Ruby's Cash Store (Pty) Ltd v Estate Marks and Another 1961 (2) SA 118 (T) at pp120-3), it is today the accepted common law rule of practice in our courts, that, generally, the execution of a judgment is automatically suspended upon the noting of an appeal, with the result, that, pending the appeal, the judgment cannot be carried out and no effect can be given thereto, except with the leave of the court which granted the judgment.

To obtain such leave, the party in whose favour the judgment as given must make special application: see generally Olifants Tin "B" Syndicate v De Jager 1912 AD 377 at p481; Reid and Another v Godart and Another 1938 AD 511 at p513; Gentiruco A.G. v Firestone SA (Pty) Ltd 1972 (1) SA 589 (AD) at p667; Standard Bank of SA Ltd v Stama (Pty) Ltd 1975 (1) SA 730 (AD) at p746.”

The authorities referred to above were concerned with, and dealt with, the principle that a judgment creditor is entitled, at law, to apply for leave to execute a judgment on appeal pending the determination of that appeal.

The question of which court has the jurisdiction to consider and determine such an application, or should do so, had not been settled.

This was the issue that the court was faced with in Hermannsburg Mission v Sugar Industry Central Board 1981 (4) SA 717...,. In that case, it was stated that:

“It is quite clear that it is only the court granting the order appealed against which has, at common law, or in terms of the Rules, the power to give leave to allow its judgment to be carried into effect pending the decision of the appeal, and it follows that this Court has no jurisdiction to grant any of the relief sought.”

When the above passage is viewed against the comments of the learned former Chief Justice in Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S), it must be accepted that the court that grants a judgment has the jurisdiction to entertain and grant leave for its execution pending appeal.

While it cannot be denied that section 176 of the Constitution grants all superior courts the inherent power to control their own processes, it cannot be gainsaid that the exercise of that power must be judicious. It is an exercise of discretion.

In the formulation of the argument by the applicant, it is contended, that, in considering an application for leave to execute pending appeal, the High Court is forced to join common cause with one or other of the litigants. Counsel referred to this process as the court taking sides.

I am unable to agree.

An application for leave to execute a judgment pending an appeal is available because, by operation of the law, the noting of an appeal automatically suspends the decision appealed against with the effect that it cannot be carried into execution. However, if, despite the appeal, the successful party wants to execute the judgment in the interim, he has to seek the leave of the court that granted the judgment.

The application would be premised on the principle that the court has an inherent power to control its own process.

The general rule is that a party who obtains an order against another is entitled to execute it.

It is trite at law that a successful litigant should not be deprived of the fruits of a judgment obtained in his favour, unless there are special circumstances or special grounds that justify a stay of execution to be granted as aforesaid.

The court, therefore, retains an inherent power to manage that process, having regard to the applicable rules of procedure.

What is required for a litigant to persuade the court to exercise its discretion in favour of granting a stay in the execution of the court's judgment has been stated in a plethora of authorities.

In Mupini v Makoni 1993 (1) ZLR 80 (S)…, the court stated the position of the law clearly thus:

“In the exercise of a wide discretion, the court may, therefore, set aside or suspend a writ of execution, or, for that matter, cancel the grant of a provisional stay. It will act where real and substantial justice so demands. The onus rests on the party seeking a stay to satisfy the court that special circumstances exist.

The general rule is that a party who has obtained an order against another is entitled to execute upon it.

Such reasons against execution issuing can be more readily found where, as in casu, the judgment is for ejectment or transfer of property, for, in such instances, the carrying of it into operation could render the restitution of the original position difficult: see Cohen v Cohen (1) 1979 ZLR 184 (A) 187C; Santam Investment Company Ltd v Preget (2) 1981 ZLR 132 (G) at 134G-135B; Chibanda v King 1983 (1) ZLR 116 (H) at 119C-H; Strime v Strime 1983 (4) SA 850 (C) at 852A.”

See also Humbe v Maduna & Ors SC81-21.

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE
Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

THE EXERCISE BY THE SUPERIOR COURTS OF THE POWER TO REGULATE THEIR PROCESSESThe Court is being urged to find, that, as a result of the incidence of section 176 under the Constitution, the High Court can no longer hear and determine applications for leave to execute against judgments emanating from ...

THE EXERCISE BY THE SUPERIOR COURTS OF THE POWER TO REGULATE THEIR PROCESSES

The Court is being urged to find, that, as a result of the incidence of section 176 under the Constitution, the High Court can no longer hear and determine applications for leave to execute against judgments emanating from that court in the event of appeals having been noted against such judgments.

According to the applicant, the common law power to do so that used to inhere in the High Court has been ousted by the Constitution and now reposes in the Supreme Court.

Any exercise of that power by the High Court, it is further argued, would be against the spirit of section 176 of the Constitution, and, consequently, illegal.

From the above authorities, it is evident that the High Court has the power to regulate its own processes, and, that this includes the ordering of the execution of its judgments pending appeal.

It is relief that is granted in special circumstances.

The execution of a judgment before it becomes final, by reason of appeal, is therefore recognized. However, this highly exceptional relief must find itself firmly founded upon good reasons for the exercise of this discretion on the part of the court.

The principles that a court must have regard to, in an application for a stay of execution of a judgment, are akin to those considered when deciding whether or not to grant leave to execute against a judgment pending appeal: see Nzara v Tsanyau and Others 2014 (1) ZLR 674 (H); Old Mutual Life Assurance Company (Pvt) Ltd v Makgatho HH39-07. They are:

“1. An appellant has an absolute right to appeal and test the correctness of the decision of the lower court before he or she is called upon to satisfy the judgment appealed against.

2. Execution of the judgment of the lower court, before the determination of the appeal, will negate the absolute right that the appellant has and is generally not permissible.

3. Where, however, the appellant brings the appeal with no bona fide intention of testing the correctness of the decision of the lower court, but is motivated by a desire to either buy time or harass the successful party, the court, in its discretion, may allow the successful party to execute the judgment notwithstanding the absolute right to appeal resting in the appellant.

4. In exercising its discretion, the court has regard to the considerations suggested by CORBETT JA in South Cape Corporations (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 545.

5. Where the judgment sounds in money, and the successful party offers security de restituendo, and the appellant has no prospects of success on appeal, the court may exercise its discretion against the appellant's absolute right to appeal.

6. An application for leave to execute pending appeal cannot be determined solely on the basis that the appellant has no prospects of success on appeal, especially where the whole object of the appeal is defeated if execution were to proceed: see Woodnov Edwards and Another 1966 RLR 335.”

Invariably, the decision of whether or not to grant an application for leave to execute turns on the relative strength or weakness of the appeal.

This necessarily entails the court that granted the judgment treading the same path during the initial proceedings leading to the judgment under appeal by the superior court. It also entails the court peeking into an appeal that is pending before the Appellate Court, and, in some way, pronouncing a verdict on it.

In this exercise, it takes into account the following considerations:

(a) The potentiality of irreparable harm or prejudice being sustained by the appellant if leave is granted;

(b) Conversely, the potentiality of irreparable harm or prejudice sustained by the respondent, on appeal, if leave to execute is not granted;

(c) The prospects of success on appeal, including the question as to whether the appeal is frivolous or vexatious or noted, not with the bona fide intention of reversing the judgment appealed against, but for some other motive e.g. to gain time.

(d) Where there is the possibility of irreparable harm to both parties, the balance of hardship or convenience.

In invoking the above considerations, a deliberation on the protection of the respective rights of the parties is also embarked on when assessing the issue of irreparable harm and potential prejudice.

Given that the order is not granted for the mere asking, and, further, that it is granted after an assessment of pertinent considerations, it becomes apparent that those safeguards are put in place to protect the rights of both parties that are constitutionally guaranteed, as prejudice may befall either party: see Amalgamated Rural Teachers Union of Zimbabwe & Anor v ZANU PF & Anor HMA37-18.

As is evident from the foregoing, the application to execute a judgment pending appeal is premised on the principle, that, the court exercises its inherent power to control its process in order to give effect to the over-riding principle that the court must ensure that its processes result in achieving real and substantial justice: see Santam Insurance Company Ltd v Paget 1981 ZLR 132...,.

In my view, the above dicta apply forcefully in the present matter.

The application of the remedy for leave to execute pending appeal forms part of the High Court's authority to regulate its own processes. It is not equivalent to a usurpation of the functions of the Supreme Court. This is so because, in assessing the prospects of success on appeal, the court is tasked with assessing whether the applicant has established an arguable case justifying that execution should be carried out notwithstanding the pending appeal.

The automatic stay of execution upon noting of appeal, as a rule of practice, is not a firm rule of law but a long-established practice regarded as generally binding, subject to the court's discretion.

At the core or pith of the inquiry relating to an application of this kind is the duty of the court to determine what is just and equitable.

In this endeavour, the court has to assess the prospects of success of the appeal.

In assessing the prospects of success in the upper court, the court has to consider whether the appellant has got an arguable case or whether it, the appeal, is manifestly a predictable failure.

This process cannot in any way be said to be a violation of the applicant's right to a fair hearing.

On the other hand, it constitutes the exercise by the court of its discretion in controlling its own process and ensuring that no abuse of court processes ensues.

Indeed, an assessment of prospects of success cannot be termed a violation of the applicant's right of access to the Supreme Court as, where an appeal is noted out of time, and the justice of the case demands, an order staying execution is always granted if circumstances require that a stay should be granted on the basis of real and substantial justice.

The courts, as confirmed by section 176 of the Constitution, have the inherent jurisdiction to control their own processes. Section 176 of the Constitution, in point of fact, re-affirms this common law power.

Apart from the expression that the courts have inherent power to control their own processes, the powers are not specified, nor are the processes set out.

An ambiguity then ensues when the exercise of discretionary power by one court is alleged to be an infringement of the power of another court.

What are inherent powers, and from whence does a court get such power?

The word 'inherent' is an adjective and is very wide in itself. In the Merriam-Webster Dictionary, it is defined as “involved in the constitution or essential character of something, belonging by nature or habit, or intrinsic.”

It has been defined variously as meaning existing in and inseparable from something as a permanent, a permanent essential or characteristic attribute or quality, an essential element, something intrinsic or essential. In legal terms, it may be defined as vested in or attached to a person or office as a right of privilege.

Thus, the inherent jurisdiction of superior courts, or their inherent powers, are those powers which are in-alienable from courts.

It therefore stands to reason, that, inherent powers are an integral part of the self-created general jurisdiction at common law and may be exercised by a court to do full and complete justice between the parties before it.

The principle of the inherent jurisdiction of superior courts was discussed by LORD DIPLOCK in Bremer Vulkan v South India Shipping (H.I.) [1981] A.C. 909…, wherein he stated as follows:

“The High Court's power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own processes so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice….,.

So, it would stultify the constitutional role of the High Court, as a court of justice, if it were not armed with power to prevent its process being misused in such a way as to diminish its capability of arriving at a just decision of the dispute.

The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an 'inherent power' the exercise of which is within the 'inherent jurisdiction' of the High Court.

It would, I think, be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of such acts which it needs must have power to do in order to maintain its character as a court of justice.”

I would venture to suggest, that, the exercise of inherent jurisdiction is a broad doctrine of the English Law allowing a court to control its own processes and to control the procedures before it.

The power stems, not from any particular statute or legislation, but is rather an integral part of the constitution of the court itself. These are powers invested in a court to control the proceedings brought before it. Thus, the court may use its power to ensure convenience and fairness in legal proceedings. It may utilize this power to stop abuse of processes or vexatious litigation.

On a proper construction of the law, I do not envisage a scenario arising out of one court's power under section 176 of the Constitution undermining the power of another court under the same provision.

The applicant has not placed before the court any credible argument that would lead to a finding that the inherent powers of the Supreme Court are being hijacked by the High Court when it determines applications for leave to execute a judgment pending an appeal.

Any determination in this regard would still be liable to be appealed against to the Supreme Court.

It is correct, as contended by the applicant, that, once it renders its judgment, the High Court becomes functus officio; but, notwithstanding this scenario, I am of the view that it retains its inherent power over the judgment under those circumstances that I set out below.

That the Supreme Court enjoys an inherent jurisdiction to control its processes is beyond dispute.

In view of the fact that both the High Court and the Supreme Court enjoy this inherent power, it is necessary to examine in what context the Supreme Court can, if it can, entertain an application for leave to execute a judgment pending an appeal before it.

It is evident that the applicant wishes to read into section 176 of the Constitution an absolute power on the part of the Supreme Court to entertain applications for leave to execute judgments pending appeal.

Notwithstanding the sentiments expressed above, it is, however, evident that the Supreme Court can entertain such an application where the circumstances of the case demand, and that allow it to do so. Each case can only be determined according to the prevailing circumstances and it would not be in accordance with the tenets of justice for this court to delineate what those situations may entail.

Suffice it to say, that, in the exercise of its inherent power, and in order not to allow an injustice, the Supreme Court may, and can, entertain an application for leave to execute a judgment pending appeal. This would accord with the tenets of justice and would be a proper exercise of the inherent jurisdiction of the Supreme Court in controlling its processes.

In this instance, the applicant has not pointed to the court any provision that would imbue the Supreme Court with any other power over its proceedings except as is evident from the Constitution, the common law, and its enabling Act.

The Supreme Court cannot order the execution of a judgment that is not its own. That is the realm of the High Court, in regulating its own process, and ensuring that frivolous appeals are dealt with.

The Supreme Court cannot act outside the law. It is a creature of statute and must exercise such jurisdiction as the law has imbued it with.

I do not, from my reading of section 176 of the Constitution, discern the power to order the execution of a judgment that is not its own except in the situations adverted to above.

In addition to the above, I cannot envisage a process that is more prejudicial to the appellant than the Supreme Court entertaining an application for leave to execute a judgment pending an appeal that is before it.

Whilst the High Court would be obliged to consider the prospects of success of the appeal, the Supreme Court would be placed in the unenviable position not to pre-determine the merits of the appeal itself.

The position is no different in South Africa.

In Moch v Nedtravel (Pty) Ltd t/a American Express Travel Services 1996 (3) SA 1 (A), the court made the following remarks:

“The short answer is that the Court's 'inherent reservoir of power to regulate its procedures in the interests of the proper administration of justice' (per Corbett JA in Universal City Studios Inc and Others v Network Video (Pty) Ltd 1986 (2) SA 734 (A) at 754G), does not extend to the assumption of jurisdiction not conferred upon it by statute. As explained in R v F Milne and Erleigh (6) 1951 (1) SA 1 (A) at 5 in fin;'

'(this) Court was created by the South Africa Act and its jurisdiction is to be ascertained from the provisions of that Act as amended from time to time and from any other relevant statutory enactment.'

Nowadays, its jurisdiction derives from the Supreme Court Act and other statutes, but, the position remains basically the same: Sefatsa and Others v Attorney-General, Transvaal and Another 1989 (1) SA 821 (A) at 833E-834F; S v Malinde and Others 1990 (1) SA 57 (A) at 67A-B.

The Court's inherent power is, in any event, reserved for extraordinary cases where grave injustice cannot otherwise be prevented: Enyati Colliery Ltd and Another v Alleson 1922 AD 24 at 32; Krygkor H Pensioenfonds v Smith 1993 (3) SA 459 (A) at 469G-I.”

The above dictum was, however, qualified in Numsa v Fry's Metals (Pty) Ltd 2005 (5) SA 433 (SCA), where…, the court opined as follows:

“[23] It is true that in Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service, Hefer JA said that the jurisdiction of the Appellate Division 'derives from the Supreme Court Act and other statutes.'

This conformed with the interim Constitution, which was then in force.

This Court does not have original jurisdiction: its jurisdiction derives from the Constitution. It is also correct, that, at common law, a Court has no automatic jurisdiction to hear an appeal from another court: 'An appeal can only lie by virtue of some statutory provision.'

Yet, ch 8 of the Constitution superseded both the common law and the interim Constitution.

It subsumed the common law powers of this Court, and not only conferred jurisdiction in constitutional matters on it, but, constituted it the highest Court of Appeal in all matters except constitutional matters. It did so in unqualified terms, and those terms are now the source of this Court's jurisdiction. They must, we consider, be given their full effect in interpreting the provisions of the LRA.”

Thus, in the exercise of the court's discretionary power, frivolous appeals can be handled by allowing a lower court to decide whether a ruling should be enforced while an appeal is pending.

It does not involve a constitutional matter or inquiry. The dispute can be resolved without invoking the Constitution.

The issue raised, as to which court can determine such an application, does not involve the interpretation, the protection or the enforcement of the Constitution.

WHETHER THE APPLICANT HAS ESTABLISHED VIOLATIONS OF HIS FUNDAMENTAL RIGHTS

The applicant argues, that, the application of the common law remedy violated his constitutional rights under section 56(1) and section 69(3) of the Constitution.

He posits that his request for a constitutional referral was neither frivolous nor vexatious.

Section 56(1) of the Constitution provides, that, all persons are equal before the law and have the right to equal protection and benefit of the law.

This Court has had occasion to consider the import of the provision in the case of Nkomo v Minister of Local Government, Rural & Urban Development & Ors CC06-16. ZIYAMBI JCC posited the following:

“The right guaranteed under section 56(1) is that of equality of all persons before the law and the right to receive the same protection and benefit afforded by the law to persons in a similar position. It envisages a law which provides equal protection and benefit for the persons affected by it. It includes the right not to be subjected to treatment to which others in a similar position are not subjected.

In order to found his reliance on this provision, the applicant must show, that, by virtue of the application of a law, he has been the recipient of unequal treatment or protection, that is to say, that, certain persons have been afforded some protection or benefit by a law, which protection or benefit he has not been afforded; or that persons in the same (or similar) position as himself have been treated in a manner different from the treatment meted out to him and that he is entitled to the same or equal treatment as those persons.”

Herein, the applicant merely raises bald allegations of his unequal treatment.

The basis of the alleged violation of his right arises from the election of the court a quo to deny his request for referral of the matter to this Court. It is the court a quo's determination of his request as frivolous and vexatious that he founds the claim under section 56(1) of the supreme law.

However, he fails to lay out any material facts to give credence to the allegation that the court a quo discriminated against him in applying the law. He has not shown any differentiation in treatment between him and any other party by the manner in which the court dealt with the matter's application for referral to the Court.

He has further not shown how the refusal by the court denied him the benefit of the law.

The case of Nkomo v Minister of Local Government, Rural & Urban Development & Ors CC06-16 is unequivocal on the consequences following upon the failure of an applicant to demonstrate the unequal treatment that he has been subjected to by the court a quo.

The Court made the following remarks…,.:

“Clearly, the guarantee provided by section 56(1) is that of equality under the law. The applicant has made no allegation of unequal treatment or differentiation. He has not shown that he was denied protection of the law while others in his position have been afforded such protection. He has presented the Court with no evidence that he has been denied equal protection and benefit of the law....,. In short, the applicant has come nowhere near to establishing that his right, enshrined in section 56(1) of the Constitution, has been infringed. He is therefore not entitled to a remedy.”…,.

Further to the above, and more critically, the applicant has not challenged the validity of the exercise of the discretion by the High Court in casu.

In terms of section 175(4) of the Constitution, the relevant court may refuse the request for referral by the parties if it considers such an application to be frivolous or vexatious.

It is apparent that the presiding judicial officer is endowed with limited discretion in the matter.

The applicant does not challenge the substance of the court a quo's exercise of its discretion under 175(4) of the Constitution. The court found the application to be frivolous and vexatious.

It rightly dismissed the application.

The import of the term 'frivolous' was considered in the case of Williams & Anor v Msipha NO 2010 (2) ZLR 552 (S) by MALABA DCJ…, who stated the following:

“In S v Cooper & Ors 1977 (3) SA 475 (T) at 476D, Boshoff J said that the word 'frivolous' in its ordinary and natural meaning connotes an action or legal proceeding characterised by lack of seriousness as in the case of one which is manifestly insufficient. The raising of the question for referral to the Supreme Court, under section 24(2) of the Constitution, would have to be found, on the facts, to have been obviously lacking in seriousness, unsustainable, manifestly groundless or utterly hopeless and without foundation in the facts on which it was purportedly based.”

See also Martin v Attorney General & Anor 1993 (1) ZLR 153 (S)…,.

If due regard is had to the full background of the matter, it is evident that the application for referral was not made in good faith.

The applicant's action in forcibly entering upon the premises and depriving the respondent's representatives of possession of the premises was the sole reason for the institution of the spoliation proceedings in the High Court.

He resorted to self-help and sought the assistance of the court to unduly frustrate the respondent from effectively enforcing the judgment of the Supreme Court in which his dispute with the respondent's executives was settled.

By seeking a referral before the hearing of the application for leave to execute, as rightly alleged by the respondent, the applicant sought to buy more time to vex the respondent and further his cause in the dispute regarding ownership of the church premises.

In short, the dismissal of his referral application was in no way a violation of section 56(1) of the Constitution. In my view, this argument lacks merit and cannot be sustained.

In casu, the High Court stated as follows…,.:

“The back-drop against which the applicant seeks execution has been articulated by the applicant. The applicant's incentive in seeking enforcement rests in not only having won their litigation on spoliation, but, it is also against the backdrop of having won the Supreme Court matter in the church's leadership wrangle.

The applicant also seeks enforcement, expeditiously, against the backdrop of the respondent having left the church only to return, by force, to take over the premises.

The respondent, on the other hand, believing as he does that his congregants are in the majority, seeks to delay the enforcement of that judgment on the basis that the court erred.

Generalised arguments that deliberately skirt the context of each case in which execution is sought cannot therefore be a basis for creating an imagined constitutional crisis. Materially, there is therefore nothing inherently unconstitutional in a court ordering execution of its judgment where it firmly believes that the appeal has been lodged to simply buy time. Allowing a lower court to determine whether a judgment should be enforced pending an appeal is a way of dealing with frivolous appeals.”

As stated in Old Mutual Life Assurance Company (Private) Limited v L. Makgatho HH39-07:

“Where, however, the appellant brings the appeal with no bona fide intention of testing the correctness of the decision of the lower court, but, is motivated by a desire to either buy time or to harass the successful party, the court, in its discretion, may allow the successful party to execute the judgment notwithstanding the absolute right to appeal vesting in the appellant.”

As regards the alleged unconstitutional exercise of its discretionary power by a court ordering execution in a matter which is on appeal in a higher court, it is clear that the law provides a constitutional right of appeal that is available to the unsuccessful party, whether it is the plaintiff or the defendant.

Even though there is a presumption that the trial court's decision is correct, a litigant still has the opportunity to have the lower court's decision upturned on appeal.

The implication of this is that where execution has been carried out pursuant to the judgment of the lower court, the judgment of the Appeal Court would become a pointless victory, especially where, as a result of execution against the judgment, the judgment debtor suffers irretrievable prejudice or injury.

The law is, therefore, cognisant of the need for the Court of Appeal to protect not only the res but also to ensure that its judgment is not rendered nugatory upon being delivered.

An appeal against the order granting leave to execute would, by operation of law, suspend its execution.

In this way, the court preserves the res, and, at the same time, protects its judgment from being rendered nugatory.

This constitutes part of the inherent power to control the court's processes.

On a proper reading of the Constitution, it cannot be said that the power to control the execution of a judgment, that vests in the High Court, has been ousted by the incidence of section 176 of the Constitution.

I am certain that such a construction would be reading into the provision a legal position that is unsustainable at law. Section 176 of the Constitution confirms the inherent jurisdiction of the superior courts and does not in any express or implied manner detract from the powers of the respective courts.

In addition, the applicant also alleges that his right to a fair trial, under section 69(3) of the Constitution, was violated by the court a quo.

He stresses that the determination of the application for execution pending appeal effectively pre-empts the Supreme Court's decision. He argues that his right of access to the Supreme Court is militated against by the court a quo's decision.

The full import of section 69 of the Constitution was considered recently in the case of Sadiqi v Muteswa CC14-21...,. PATEL JCC succinctly summarised the aforesaid section as follows:

“Section 69 of the Constitution enshrines and protects the right to a fair hearing. It guarantees that the courts are open to every person. However, this is subject to the rules put in place to regulate court proceedings and bring order to the justice delivery system. When the dirty hands doctrine is applied to refuse to entertain a litigant who is in violation of a court order, he is not being denied the right to a fair hearing. This is actually a measure that is necessary to preserve the dignity and the authority of the courts so that the citizenry at large can continue to enjoy the right to a fair hearing. It is an essential part of the inherent power that the courts enjoy so as to protect their own processes.”

In Mugwambi v Ajanta Properties (Pvt) Ltd HH77-08, MAKARAU JP…, stated as follows…,.:

“The power to grant stay of execution pending appeal is a common law exercise of the power that inheres in this court. In this regard, the court enjoys the discretion of the widest kind. The main guiding principle for the court in determining such applications is to grant stay where real and substantial justice requires such a stay, or, conversely, where injustice would otherwise be done: see Standard Bank of South Africa Ltd and Another v Malefane and Another: In re Malefane v Standard Bank of South Africa Ltd and Another 2007 (4) SA 461 (TK); Road Accident Fund v Strydom 2001 (1) SA 292 (C); Williams v Carrick 1938 TPD 147 at 162; Strime v Strime 1983 (4) SA 850 (C); and Graham v Graham 1950 (1) SA 655 (T).”

By parity of reasoning, the High Court's common law jurisdiction to order the execution of its judgment pending an appeal pending in the Supreme Court is thus consistent with the hierarchy of courts provided in section 162 of the Constitution.

Further, the assessment of prospects of an appeal already before a superior court is consistent with the obligation on all courts to be impartial and to do justice between man and man.

It is noted, that, the applicant seems to query the jurisdiction of the High Court.

He relies on the provisions of section 176 of the Constitution and argues that the power to order execution of judgments under appeal no longer vests in the High Court but now reposes in the Supreme Court.

In this regard, he contends that when it ordered execution pending appeal, the High Court violated his perceived fundamental rights under sections 56(1) and 69(3) of the Constitution.

This misconception was canvassed in the case of Mutasa and Anor v The Speaker of the National Assembly and Ors CC18-19. It was held…, that:

“It would be absurd to come to a conclusion that an act done in terms of the provisions of the Constitution can violate someone's rights under the same Constitution. In other words, the applicants could not have been successful in challenging an act that was sanctioned by the supreme law of the land.

The Constitution is one document that contains provisions that are consistent with each other. One provision of the Constitution cannot be used to defeat another provision in the Constitution. Different provisions of the Constitution must be interpreted with a view to ensuring that they operate harmoniously to achieve the objectives of the Constitution.”

In light of the foregoing, the prospects of success in the main matter are negligible as the applicant has not established any cogent reasons to support a violation of his fundamental rights. This directly impacts upon the present application and I am constrained to find, that, it would not be in the interests of justice to grant direct access to this judicial forum.

THE AVAILABILITY OF AN ALTERNATIVE REMEDY TO THE APPLICANT

It is settled that in an application for direct access, this Court may also consider the availability of alternative remedies to the applicant.

In opposing the application, the respondent avers that the applicant still enjoys a right of appeal to the Supreme Court and that this matter is alleged to be still pending.

This contention has not been disputed by the applicant.

Rule 21(8) of the Constitutional Court Rules sets out the availability of any other remedy as one of the factors that are indicative of whether or not an application has prospects of success.

In Makoto v Mahwe N.O. & Anor CC03-20..., this Court held that:

“If a remedy is available to a party, whether it is a factual or a legal remedy, courts will not normally consider a constitutional question unless the existence of a remedy depends on it.”

In my view, the Court ought to refrain from addressing the constitutional question as the Supreme Court is seized with the real dispute between the parties which relates to possession and the subsequent ownership issues surrounding the premises in question.

I am fortified in these remarks by the sentiments of this Court in the case of Chawira & Ors v Minister of Justice, Legal & Parliamentary Affairs & Ors CC03-17…,. It was held that:

“As we have already seen, in the normal run of things, courts are generally loathe to determine a constitutional issue in the face of alternative remedies. In that event, they would rather skirt and avoid the constitutional issue and resort to the available alternative remedies. This has given birth to the doctrine of ripeness and constitutional avoidance ably expounded by EBRAHIM JA in Sports and Recreation Commission v Sagittarius Wrestling Club and Anor 2001 (2) ZLR 501 (S) at p505G...,.”

In my view, the applicant has failed to show that he does not have alternative remedies available to him.

DISPOSITION

From the foregoing, it is the Court's view that the application lacks merit. The application must therefore fail for the reasons that the substantive application has no prospects of success and also that there exist alternative remedies for the applicant.

In the result, I make the following order:

The application is dismissed with no order as to costs.

CC07-23 : RITA MBATHA vs VINCENT NCUBE and MESSENGER OF COURT
Ruled By: PATEL JCC

This is a chamber application for condonation and extension of time within which to file an application for direct access due to non–compliance with Rule 9(7) of the Rules of this Court. The instant application was made in terms of Rule 35 of the Constitutional Court Rules 2016.The BackgroundThe applicant ...

The Background

The applicant in this matter is a self-actress seeking the indulgence of this Court to be granted condonation for non-compliance with the Rules.

On 29 March 2023, her application for direct access to this Court, under Case No. CCZ55/22, was struck off the roll due to her failure to effect proper service on the first respondent. The application was one of many suits between the applicant and the first respondent who have been deadlocked in protracted litigation since 2016 when the latter sought to evict the former from his property.

The dispute between the parties appeared to have reached finality when the Supreme Court, in Case No. SC443/21, dismissed the applicant's appeal in which she had challenged the court a quo's dismissal of her urgent chamber application for an interdict meant to bar the first respondent from effecting eviction in terms of the ejectment order granted in his favour under Case No. MC39520/16.

However, the applicant was dissatisfied with the verdict rendered by the Supreme Court, taking particular issue with the utilisation of Rule 53(3) of the Supreme Court Rules 2018.

It was on the basis of the aforementioned Rule that the matter was determined on the merits, having regard to the papers filed of record following the applicant's default of appearance before the Supreme Court.

The dismissal of the appeal culminated in the applicant filing an application for rescission which was subsequently dismissed by the Supreme Court.

Aggrieved by this turn of events, the applicant sought to challenge the final verdict of the Supreme Court before this forum arguing that her fundamental right to a fair trial had been unduly violated.

However, it was due to the earlier-mentioned defective manner of service that the applicant found herself seeking this Court's indulgence to file a proper application for direct access.

In her founding affidavit, the applicant proceeded to narrate the background of her prospective application before this Court. She made unsubstantiated allegations of professional impropriety against the Registrar of this Court which suggested that there was collusion with the first respondent.

There was no explanation tendered for her non–compliance with the Rules of this Court save to insist upon vindicating her allegedly impugned constitutional rights.

According to the applicant, the main application enjoys prospects of success as she was discriminated against by the Supreme Court in Case No. SC443/21.

She also made the bald averment that the first respondent also wanted the matter to be determined to finality by this Court.

The applicant advanced the argument, that, it was important for this Court to make a ruling on whether the Supreme Court's decision to proceed with the matter under Case No. SC443/21 in her absence was fair and just.

It was the applicant's case, that, the Supreme Court furthered her injustice by dismissing her application for rescission in Case No. SC237/22, especially since the matter was determined by the same Bench which had presided over her appeal in Case No. SC443/21.

The grant of condonation was opposed by the first respondent.

It was submitted, that, the applicant's conduct was driven by a desire to remain on his property despite a valid ejectment order from the Magistrates Court under Case No. MC39520/16.

The first respondent alleged, that, the applicant was creating a trail of purportedly pending litigation to frustrate her eviction. He reasoned that the Supreme Court was well within its power to utilise Rule 53(3) of the Supreme Court Rules in the appeal proceedings under Case No. SC443/21. Thus, it was argued that the present proceedings were now a mere abuse of court process.

In response, the applicant submitted that the first respondent was intent on preventing the finalisation of the dispute. She proceeded to justify her interests in several matters pending before this Court and other judicial fora.

The rest of her answering affidavit was dedicated to objectionable material save for the insistence that her fundamental right to a fair trial had been violated by the conduct of the Supreme Court in the proceedings under Case No. SC443/21.

Submissions before this Court

At the hearing of the matter, it came to the Court's attention that the applicant had now been evicted by the first respondent in terms of the eviction order under Case No. MC39520/16.

The applicant confirmed that she was evicted on 23 May 2023.

She added that she had since filed a spoliation application in the High Court, which matter was still pending determination.

It became apparent that the instant application had since been overtaken by events and was now academic.

This point was appreciated by both parties, but, the applicant was resolute in proceeding with the matter despite its nominal bearing on her present predicament.

The applicant had no reasonable explanation for her failure to serve the first respondent as per Rule 9(7) of the Constitutional Court Rules 2016.

She persisted with the argument that she had effected service personally on the first respondent.

When directed to the content of Rule 9(7) of the Constitutional Court Rules, no credible or reasonable explanation was proffered as to why service had not been effected through the Sheriff as stipulated by the Rules.

She submitted, that, her intended application for direct access was in the interests of justice since the Supreme Court had violated her fundamental rights by proceeding with the appeal under Case No. SC443/21 in her absence.

The applicant suggested that there was evidence in her favour that she could have provided at the hearing before the Supreme Court.

In addition, she also impugned the conduct of the bench in Case No. SC237/22 for refusing to recuse themselves from determining her application for rescission.

Per contra, counsel, on behalf of the first respondent, submitted that the matter was now merely academic following the applicant's eviction from the property. As such, no consequential relief from this Court would restore her occupation since eviction was made in terms of a valid order under Case No. MC39520/16.

Counsel for the first respondent reiterated that the present proceedings were now an abuse of court process by the applicant. To that end, she sought costs on a higher scale as the first respondent was being constantly dragged to court without any just cause.

The applicant disputed the claim for costs as she insisted that she was merely vindicating her constitutional rights.

The Relief Sought

The relief sought before this Court was for an order framed as follows:

“1. Application for condonation of non-compliance with Rule 9(7) of the Constitutional Court Rules be and is hereby granted.

2. Application for extension of time within which to file and serve an application in terms of the rules be and is hereby granted.

3. There shall be no order as to costs if the matter is not opposed.”

The Governing Principles

The parties have helpfully referred the Court to some of the relevant principles in an application of this nature. Some of these principles will inform the Court's determination and are listed as follows:

(i) The degree of non-compliance;

(ii) The explanation for the non-compliance;

(iii) The importance of the case;

(iv) The prospects of success;

(v) The interests of justice;

(vi) The interests of finality in the case; and

(vii) The avoidance of unnecessary delay in the administration of justice.

See Mhora v Mhora CC05-22; K.M. Auctions (Pvt) Ltd v Samuel & Anor SC15-12…,.; Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S)…,.; Terera v Lock & Others SC93-21; and Maheya v Independent African Church 2007 (2) ZLR 319 (S).

The Degree of and Explanation for the Non–Compliance

The warning has long often been sounded to litigants that petition the courts regarding non-compliance with the Rules. In the case of Museredza and Ors v Minister of Agriculture, Lands, Water and Rural Resettlement and Ors CC11-21, the following was reiterated by MAKARAU JCC:

“It is a rule of common law and an entrenched part of our practice and procedure that matters are to be brought before the court in accordance with the Rules of that court. The remarks of PATEL JCC in Marx Mupungu v The Minister of Agriculture, Lands, Water and Rural Resettlement and Others CC07-21 are apt. He wrote:

'One cannot institute an action or application in the High Court, or any other court, without due observance of and compliance with the Rules of that court. The Rules inform a litigant of what is required of him to access the court concerned. If he fails to observe or comply with those Rules, he will inevitably be non-suited.'”

Flowing from the above is the necessary implication, that, where litigants fall foul of the applicable Rules, a sufficient explanation must be tendered in order to be granted the Court's indulgence.

However, in the present case, the applicant's founding affidavit is bereft of any reasonable explanation.

Save for a heading titled “Extent of the delay and reasonableness of the explanation” the applicant made no attempt to bring the Court into her confidence regarding the circumstances that led to her non-compliance.

This deficit was further compounded during submissions before this Court where the applicant tendered no reasonable explanation for her non–compliance, except to insist that she had effected service personally upon the first respondent.

Generally, a measure of tolerance is afforded to self-actors. Reference is made to the case of Sibangani v Bindura University of Science and Education CC07-22…, wherein GOWORA JCC posited the following:

“There is an unwritten rule of practice, that, wherever possible and where justice demands, courts should ensure that unrepresented litigants be accorded a measure of tolerance where it concerns procedural issues.”

However, in this instance, where the applicant is seeking the indulgence of the Court, a failure to satisfy the foremost requirement for condonation cannot pass unheeded. The applicant does not accept any accountability for how and why her matter was struck off the roll.

She alternated between simply laying blame upon the first respondent and/or the Registrar.

As such, she has failed to provide an adequate explanation for her non-compliance in addition to completely disregarding the need to plead the degree of non-compliance adequately.

The Prospects of Success in the Main Matter

The applicant averred, that, she was treated in a discriminatory manner by the Supreme Court in Case No. SC443/21. She alleged that the presiding Bench in her matter subjected her to treatment distinct from that afforded to other litigants appearing before the Supreme Court. This violated her right to a fair trial in terms of section 69 in addition to the non–discriminatory provisions of section 56(1) of the Constitution.

However, the attached draft substantive application reveals the lack of any merit in the applicant's case.

There is no indication as to how the applicant was unfairly discriminated against by the Supreme Court through the utilisation of Rule 53(3) of the Supreme Court Rules 2018. The Rule grants the Supreme Court the authority to proceed as follows:

“53. Dismissal of appeal in the absence of heads of argument or appearance

(3) Where, at the time of the hearing of an appeal, there is no appearance for the appellant or no heads of argument have been filed by him, the court may, at its discretion, determine or dismiss the appeal and make such order as to costs as it may think fit.

(4) The registrar shall notify a registrar of the court whose judgment is appealed against of the dismissal of any appeal under this rule.”…,.

Patently, there was no infraction as suggested by the applicant. The Supreme Court was well within its purview to determine the merits of the appeal in her absence.

In her submissions, the applicant also failed to highlight how this authority was abused or utilized in a discriminatory manner.

Once discrimination was alleged, it ought to have been specifically pleaded, which the applicant's founding papers dismally failed to do.

This position has been firmly established in our jurisprudence and the failure to comply with it stands to the detriment of the applicant's case: see Nkomo v Minister of Local Government, Rural and Urban Development & Ors 2016 (1) ZLR 113 (CC)…,.; Mupungu v Minister of Justice, Legal and Parliamentary Affairs and Others CC07-21.

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD
Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

This is an application for direct access to this Court.If the application is granted, it is the applicant's intention to approach this Court in terms of section 85(1)(a) of the Constitution of Zimbabwe, alleging and arguing that a judgment of the Supreme Court, handed down on 31 December 2020, infringed ...

This is an application for direct access to this Court.

If the application is granted, it is the applicant's intention to approach this Court in terms of section 85(1)(a) of the Constitution of Zimbabwe, alleging and arguing that a judgment of the Supreme Court, handed down on 31 December 2020, infringed his dual rights to equal protection and benefit of the law and to a fair hearing before an independent and impartial court.

Background

The applicant owed the second respondent the sum of US$327,345=77 plus interest thereon at the rate of fifty percent per annum. On a date that is not material, the second respondent obtained judgment in the High Court against the applicant for the payment of the debt together with the accrued interest.

The applicant failed to satisfy the judgment debt.

In due course, the first respondent attached the applicant's farm and sold it by public auction. The sale realized the sum of US$205,000. The applicant successfully objected to the sale. The first respondent set the sale aside, accepting that the sale had been conducted in an irregular manner.

It had not been preceded by a nulla bona return against the applicant's movables and the property had been poorly described in the advertisement flighted before the sale.

In his ruling setting aside the sale, the first respondent indicated that he would offer the property for sale by private treaty for the following thirty days on certain specified conditions.

The first respondent proceeded to sell the property to the fourth respondent by private treaty for the sum of US$825,000.

Clearly not anticipating any further objections from the applicant, the first respondent advised the judgment creditor's legal practitioners of the sale by letter, which he also copied to the applicant.

In the same breath, he advised the parties that he had declared the fourth respondent the purchaser of the property and had consequently confirmed the sale in accordance with the rules of court.

The germane part of the letter reads:

“I refer to the sale in the above matter and advise that on 27 February 2018, the Sheriff declared and confirmed the highest bidder, Paperhole Investments (Pvt) Limited, to be the purchaser at the sum of US$825,000 after the property was sold by private treaty.”

The letter advising and confirming the sale at the same time was written on 27 February 2018, the same date on which the sale was concluded.

Upon receipt of his copy of the letter, the applicant approached the first respondent, intending, once again, to object to the sale.

The first respondent raised the defence of functus officio. He advised the applicant that after confirming the sale, his mandate was discharged and the applicant had to approach the High Court for any possible relief.

In due course, the applicant filed an application for review in the High Court, seeking an order setting aside the confirmation of the sale. He alleged that such confirmation was irregular and not in accordance with the rules of the High Court.

The application was opposed by all the respondents save for the third.

In opposing the application before the High Court, the first respondent stated in his opposing affidavit, that, he had declared the fourth respondent as the purchaser and had confirmed the sale in the same breath because it was his reading of the rules of court that the applicant had no right to object to the second sale. It was his considered position that the rules did not permit him to entertain multiple objections in respect of the same property sold in execution.

Dismissing the first respondent's contentions, the High Court upheld, and correctly so in my view, the applicant's right to challenge the second sale.

It found that the applicant's right to object to any sale of his property in execution was not limited by the certain number of objections he had taken. For as long as there was a sale in execution against his property, the applicant had the right to object to any such sale on the grounds given in the law.

The High Court, however, went on to dismiss the application for review on the basis that the applicant had failed to disclose in the papers before the court the grounds of his objection to the second sale.

Aggrieved by the dismissal of the application for review, the applicant appealed to the Supreme Court.

Before that court, he contended that once the High Court had upheld his right to object to the second sale, it ought to have given him an opportunity to lodge his objection with the first respondent in accordance with the Rules.

It was his argument, that, the nature and content of his objection, embodying the recognised grounds of objecting to the sale, was not an integral part of the application for review such that its absence would be fatal to that application.

Fully developed, it was his argument that the law did not require him to lodge his objection to the sale with the court in the application for review, but to lodge it with the first respondent once the court had upheld and protected his right to object.

Viewed differently, he argued that the High Court had wrongfully conflated the application seeking the declaration of his right to object to the second sale with the procedure that he had to adopt to enjoy that right.

In its judgment, the Supreme Court took a few steps backwards, and, without making any reference to the Notice of Appeal or seeking further submissions from the parties, found that the applicant had not lodged with the first respondent an objection to the second sale as was required of him by Rule 359(1) of the High Court Rules 1971 (now Rule 71(38)).

After setting out the relevant Rule in detail, the Supreme Court found that the applicant had not complied with the provisions of the Rule, which, in its view, is worded in peremptory terms.

For emphasis, the court a quo went further to hold that there was no provision in the Rule that imposes a duty on the first respondent to invite persons to submit objections to the confirmations of the sale of immovable property in execution of court judgments.

The above finding became the ratio decidendi of the Supreme Court judgement.

The application for leave

Respecting the finality of the judgment of the Supreme Court, the applicant brought this application for leave.

It is his intention to bring an application alleging that the Supreme Court judgment breaches his right to equal protection and benefit of the law and the right to a fair hearing before an independent and impartial court.

He submitted, in this regard, that the Supreme Court judgement is erroneous both in fact and in law.

In his application, the applicant raised four main arguments:

(i) Firstly, he argued that although the judgment of the Supreme Court was on a non-constitutional issue, it threatened the court's claim to judicial authority in that it infringed his right to judicial protection.

(ii) Secondly, he alleged that the Supreme Court failed to act in accordance with the law governing the proceedings that were before it, which failure disabled it from making a decision on the non-constitutional matter that was before it.

(iii) In the third instance, he argued that the failure by the court to act in accordance with the law governing the proceedings that were before it violated his rights to equal protection and benefit of the law and a fair hearing before an independent and impartial court.

(iv) Finally, he alleged that the judgment of the court a quo was irrational and arbitrary.

I shall return to these four arguments in some detail shortly.

The application was opposed again by the first, second, and fourth respondents.

The first respondent, without necessarily accepting that the Supreme Court may have erred in its approach, argued that the Constitution protects the right to access a legal system that is fair but not necessarily infallible.

The second respondent contended, that, since there was no constitutional issue before the Supreme Court, its decision is final and cannot found a cause of action for the intended application under section 85(1) of the Constitution.

The fourth respondent denied that the applicant had demonstrated that his rights had been breached as alleged or at all. On that basis, it argued that it was not in the interests of justice that the application for leave be granted.

In my view, the contention by the fourth respondent crystallises the only issue that falls for determination in this application. It is whether it is in the interests of justice that the applicant be granted leave to bring the intended application.

This is so because during oral argument, the first respondent formally abandoned his opposition to the application and placed himself in the hands of the Court.

This is the proper stance that he ought to have taken right from the beginning.

As an officer of this Court, it is not appropriate that the first respondent pitches tent with any of the litigants and lends the weight of his office in that corner.

No issue can thus arise from the contentions by the first respondent.

In a similar vein, the contentions of the second respondent cannot give rise to any issues for determination.

It is the settled position at law that a judgment of the Supreme Court, on a non-constitutional issue, whilst not appealable, is open to review if it infringes a fundamental right or freedom: see Martin v Attorney-General 1993 (1) ZLR 153 (SC); Matamisa v Mutare City Council and Another 1998 (2) ZLR 439 (SC); Lytton Investments (Private) Limited v Standard Chartered Bank and Another CC11-18; and Denhere v Denhere CC09-19.

Thus, the only issue that remains for determination is raised for and on behalf of the fourth respondent.

The Law

An application for leave to approach this Court directly is filed and determined in accordance with Rule 21 of the Constitutional Court Rules 2016. The Rule enjoins the Court, in considering such an application, to be satisfied that it is in the interests of justice that the matter be brought directly, or at all, to this Court.

Rule 21(8) of the Constitutional Court Rules, in particular, provides specific guidance to the Court in determining when it is in the interests justice that direct access be granted in the following terms:

“In determining whether or not it is in the interests of justice for a matter to be brought directly to the Court, the Court or judge, may, in addition to any other relevant consideration, take the following into account -

(a) The prospects of success if direct access is granted;

(b) Whether the applicant has any other remedy available to him or her; and

(c) Whether there are any disputes of facts in the matter.”

The above strictures constitute very broad guidelines to the Court. These guidelines apply in general terms to all applications for direct access.

In an application such as the one before the Court, where the allegation is made that a Supreme Court judgment has infringed one or more of the applicant's fundamental rights and/or freedoms, the applicant specifically bears a double–barrelled onus in establishing, that, it is in the interests of justice that he or she be granted direct access:

(i) He or she must show, in the first instance, that the Supreme Court was disabled from rendering a decision on the matter that was before it.

(ii) In the second instance, he or she must allege and demonstrate that the judgment infringes one or more of his or her fundamental rights and/or freedoms.

A consideration of these two aspects will guide the Court in establishing whether it is in the interests of justice that direct access be granted.

Regarding the first instance referred to above, I wish to note, in passing, that, the four arguments raised by the applicant in his application, and which I have referred to above, correctly serve to illustrate the nature of the error that the Supreme Court must have fallen into to give rise to the cause of action.

The four arguments borrow heavily from the language employed in the decided cases that I have cited above.

The authorities hold, that, the decision of the Supreme Court must be arbitrary or irrational so as to threaten the claim of the court to judicial authority. The arbitrariness or irrationality of the decision must arise from a demonstrable failure by the Supreme Court “to act in accordance with the requirements of the law governing the proceedings or prescribing the rights and obligations subject to determination:” see Lytton Investments (Private) Limited v Standard Chartered Bank and Another CC11-18.

I now proceed to analyse whether the applicant has established, that, it is in the interests of justice that he be granted direct access to this court, having in mind the double-barrelled onus that he bears.

Analysis

I turn, first, to the Supreme Court decision.

The finding by the Supreme Court, that, the applicant had not lodged an objection with the first respondent to trigger the exercise of discretion by the first respondent in terms of the then Rule 359 of the High Court Rules was clearly not in answer to any of the issues that arose from the appeal or could have risen therefrom.

This is so because it was common cause amongst the parties, that, the applicant was not afforded the mandatory fifteen days within which to lodge the objection to the second sale.

It was this denial of the right, created and afforded him by the law, which triggered the litigation before the High Court.

In the circumstances of this application, the conclusion that the Supreme Court did not determine the real issue that was placed before it by the appeal is unavoidable.

The import of a failure by the Supreme Court to deal with the issues raised by the appeal has been discussed in a number of decisions of the Supreme Court itself: see Nzara & Others v Kashumba N.O. and Others SC18-18; A Adam & Company (Private) Limited & Others v Good Living Real Estate (Private) Limited & Others SC18-21; Zimbabwe Revenue Authority v Packers International (Private) Limited SC28-16; and Gwaradzimba N.O. v C.J. Petron & Company (Proprietary) Limited SC12-16.

It is the settled position that any failure to determine the issue or issues arising from the dispute between the parties is a misdirection gross enough to vitiate the order made at the end of the hearing.

The Supreme Court has held, that, it is improper for any court to either stray from the issues arising from the pleadings or to pick up an issue for the parties and determine the dispute on the basis of the issue so created by it.

This is the standard that the Supreme Court, as the apex court in all common law matters, has, since time immemorial, set and enforced upon the procedures and decisions of lower courts. It is therefore the standard against which its own procedures and decisions must, in turn, be measured.

But, this is not the end of the inquiry.

I must now turn to analyse whether the applicant has set out, adequately and appropriately, the fundamental rights and freedoms that he alleges were violated by the judgment of the Supreme Court.

I start with the allegation that the failure by the court a quo to determine the issues that were before it infringed the applicant's right to equal protection and benefit of the law as guaranteed by section 56(1) of the Constitution of Zimbabwe.

After hearing the parties at the first hearing, this Court directed the parties to make further submissions on the content of the fundamental right that is guaranteed under section 56(1) of the Constitution.

This was so because, whilst in his papers filed of record the applicant had alleged that his rights as protected by this section had been violated, in oral argument, he appeared to be relying entirely on the right to due process as guaranteed by section 18(1) of the repealed Constitution.

We are indebted to counsel for the additional submissions and oral arguments.

The applicant's position is not complicated. If granted leave, he intends to assert his rights to the protection and benefit of the law.

In this regard, he relies fully on the content of this right as it was provided for under section 18(1) of the repealed Constitution, and, as subsequently interpreted by this Court. This notwithstanding that he cites section 56(1) of the Constitution.

Section 18 of the repealed Constitution provided that:

“18 Provisions to secure protection of law

(1) Subject to the provisions of this Constitution, every person is entitled to the protection of the law.”

The content of the right, as provided for by the section, was interpreted to be nothing more than the right to demand and be protected by the due process of the law. It thus protected every person against arbitrary decisions that do not follow the laid down precepts of the law - be they substantive or adjectival: see Martin v Attorney-General 1993 (1) ZLR 153 (SC); Mawarire v RG Mugabe and Others CC01-13 and Matiashe v Mahwe N.O. and Another CC12-14.

With the adoption of the Constitution, the right to the protection of the law was re-enacted and provided for in section 56.

It is common cause that section 56(1) is differently worded from section 18 of the repealed Constitution.

The applicant readily accepts the difference in the wording of the two sections. He however argues, that, notwithstanding this change, his right to the protection of the law, as espoused in the case authorities decided prior to 2013, still obtains and must find not only expression but also gratification under section 56(1) of the Constitution.

Section 56(1) of the Constitution provides as follows:

“56 Equality and non-discrimination

(1) All persons are equal before the law and have the right to equal protection and benefit of the law.”

The right to the protection and benefit of the law, as guaranteed by section 56(1), has been construed narrowly: see Nkomo v Minister of Local Government, Rural and Urban Development and Others 2016 (1) ZRL 113 (SC) and Marx Mupungu v Minister of Justice, Legal & Parliamentary Affairs and Others CC07-21.

Thus, instead of the right to the protection and benefit of the law being a right to due process simpliciter, the right guaranteed by section 56(1) of the Constitution has been modified or discoloured, as it were, by the insertion of the word “equal” in the provision immediately preceding the right.

An applicant seeking to rely on the right must not only allege and prove non-observance of due process but now bears the additional onus of alleging and ultimately showing that other persons similarly positioned are afforded the protection and benefit of the law that he or she craves.

In Nkomo v Minister of Local Government, Rural and Urban Development and Others 2016 (1) ZRL 113 (SC), it was held that section 56(1) of the Constitution provides equality to all persons before the law and the right to receive the same protection and benefit afforded by the law to “persons in a similar position.”…,.

Similarly, in Marx Mupungu v Minister of Justice, Legal & Parliamentary Affairs and Others CC07-21 it was observed, in part, that:

“…,. What this provision means is that all persons in a similar position must be afforded equality before the law and the same protection and benefit of the law.”…,.

I do not read the above cases as having changed the core content of the right to the protection of the law as upheld by this Court prior to 2013. I read the above cases as qualifying that right, or, as PATEL JCC put it in Marx Mupungu v Minister of Justice, Legal & Parliamentary Affairs and Others CC07-21 as simply “narrowing” the scope of the enjoyment of the right.

Put differently, I do not read the judgments of this Court as requiring more than a specific averment and a demonstration by the facts alleged in the founding papers, that, similarly placed litigants were afforded the right that the applicant wishes to assert.

Viewed in this sense, the averment will, in the converse, mean that denying the applicant the right in such circumstances will amount to denying him or her equal treatment before the law. This will obviously constitute a violation of the right embodied in the section.

I am fortified in making this finding from the words of ZIYAMBI JCC in Nkomo v Minister of Local Government, Rural and Urban Development and Others 2016 (1) ZLR 113 (SC)…, where her Ladyship cites with approval the dicta in Van der Walt v Metcash Trading Ltd 2002 (4) SA 317 (CC) to the effect, that, the South African equivalent of our section 56(1) of the Constitution means that all persons in a similar position must be afforded the same right to access the courts and to the same fair and just procedures with regards to such access.

In finding against the applicant in that matter, her Ladyship continued:

“Clearly, the guarantee provided by section 56(1) is that of equality under the law. The Applicant has made no allegation of unequal treatment or differentiation. He has not shown that he was denied protection of the law while others in his position have been afforded such protection. He has presented the Court with no evidence that he has been denied equal protection and benefit of the law….,. In short, the applicant has come nowhere near establishing that his right enshrined in section 56(1) of the Constitution has been infringed. He is therefore not entitled to a remedy.”

I must, in turn, find against the applicant.

In making this finding, I am aware that the requirement to specifically plead and ultimately prove that other persons similarly placed were protected by and benefited from the law might appear superfluous and pedantic, especially in circumstances such as in casu.

However, the position of the law is that it is necessary that in all instances where the right is invoked, the equality before the law and the equal treatment under the law that the section envisages is specifically pleaded and ultimately proved, even if, in some instances, the proof thereof will be common cause or easy to furnish.

I further make the observation, that, requiring the specific averment that other persons were afforded the protection and benefit of the law that the applicant seeks, in circumstances such as in the present application, does not amount to putting form over substance.

It is not superfluous to plead that other litigants in the Supreme Court have their issues determined on appeal. Such pleading simply serves to give effect and import to the word “equal” that was inserted into the wording re-enacting the right.

For completeness, I note that the applicant did not even mount the possible, though not tenable argument that complying with the procedural requirements of pleading inequality of treatment in the circumstances of this matter was implied and therefore unnecessary.

Instead, he maintained that the position of this Court, holding that pleading unequal treatment or differentiation whenever this right is invoked is a requirement, was erroneous and ought to be set aside by a full Bench of the Court.

Put differently, he submitted that this Court ought to reverse itself.

In pressing his argument in this regard, the applicant made no attempt to distinguish the facts of this matter from the cases cited above that give a narrow interpretation of the right guaranteed by section 56(1) of the Constitution.

He did not seek to side-step the ratio decidendi of those cases but simply attacked such as being erroneous.

He thus did not lay any possible basis upon which this Court can contemplate revisiting the position that it has taken in interpreting the provisions of section 56(1) of the Constitution.

He cannot be helped.

It is common cause that the applicant did not plead his case with the requisite particularity that would have brought him within the ambit of the alleged breach of the fundamental right protected under section 56(1) of the Constitution.

Therein lies the fatal defect that determines this application against him on this allegation.

On the basis of the above, the intended application by the applicant will not succeed in establishing that the decision of the Supreme Court breached his right to the equal protection and benefit of the law.

Enjoying no prospects of success in this regard, it cannot be in the interests of justice that the leave be granted on this score.

I now turn to the second allegation, that, the decision of the Supreme Court allegedly infringed the applicant's right to a fair hearing before an independent and impartial court.

Apart from making the allegation, the applicant did not proceed to lay any foundation in his founding papers, or in oral argument, for a finding that the applicant was not afforded a fair hearing.

The applicant exerted all his energies and arguments towards establishing the error made by the Supreme Court and the alleged infringement of his right to the equal protection and benefit of the law and paid scant attention to the alleged breach of his right to a fair trial.

I find no basis on the facts of the matter for holding that the applicant was not afforded a fair trial. I do not so hold.

Disposition

The application cannot succeed and must be dismissed. Regarding costs, there are no reasons justifying a departure from the ordinary position of this Court of not awarding costs against any of the parties.

In the result, the following order is made:

The application is dismissed with no order as to costs.

CC09-23 : TENDAI MASHAMANDA vs BARIADE INVESTMENTS (PVT) LTD and PUWAYI CHIUTSI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT and ELLIOT ROGERS and ATTORNEY GENERAL ZIMBABWE
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

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.

PRELIMINARY POINT

It is imperative to deal first with the preliminary point raised by counsel for the first respondent.

Counsel for the first respondent argued, that, the applicant did not have the necessary locus standi to challenge the section 25(2) of the Supreme Court Act portion of the judgment of the court a quo.

The portion of the judgment referred to by counsel for the first respondent was the portion wherein the court a quo set aside the judgment by CHITAPI J in HH477-21.

The matter in HH477/21 involved the second respondent as the applicant and the first, fourth, and fifth respondents as the respondents.

It is common cause that the applicant was not party to those proceedings, hence, any order made would not have had any effect on him.

In law, standing or locus standi is a condition that a party seeking a legal remedy must show that they have by demonstrating to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case.

Considering the principle of locus standi, the Supreme Court, in Sibanda & Ors v The Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc. SC49-18, held as follows:

“It is trite that locus standi is the capacity of a party to bring a matter before a court of law. The law is clear on the point, that, to establish locus standi, a party must show a direct and substantial interest in the matter: see United Watch & Diamond Company (Pty) Ltd & Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (C) at 415 A-C and Matambanadzo v Goven SC23-04.”

It is settled that the principle of locus standi is concerned with the relationship between the cause of action and the relief sought. Thus, a party needs to show that they have a direct, personal, and substantial interest in the matter in contention: see Liziwe Museredzera & Ors v Minister of Agriculture, Lands, Water and Rural Settlement & Ors CC01-22...,.

There is no doubt that the applicant bought the property in question at a public auction and was declared the highest bidder after offering the sum of US$270,000. It follows, therefore, that the applicant would have a direct and substantial interest in any matter regarding anything concerning the property.

The fact that he was not cited in the proceedings in HH477-21 does not take away the fact that the applicant had bought the property and that he had a direct and substantial financial interest in it.

The above states position applies to Private Law litigation specifically.

The position is however now settled, that, the new Constitution has expanded the locus standi of persons seeking to approach the Court for the enforcement of an alleged breach of a fundamental right (Public Law litigation).

In this regard, I can do no better than cite the remarks of MALABA CJ in Meda v Matsvimbo Sibanda & Ors CC10-16…, wherein he held as follows:

“It is clear from a reading of section 85(1) of the Constitution that a person approaching the Court in terms of the section only has to allege an infringement of a fundamental right for the Court to be seized with the matter. The purpose of the section is to allow litigants as much freedom of access to the courts on questions of violation of fundamental human rights and freedoms with minimal technicalities.”

See also the dicta in Chirambwe v Parliament of Zimbabwe & Ors CC04-21 and Gonese & Anor v President of Zimbabwe & Ors CC10-18.

Counsel for the applicant submitted, that, the court a quo infringed his client's (the applicant's) rights when it acted without jurisdiction.

He argued, that, the court a quo's decision to invoke and determine a matter under section 25(2) of the Supreme Court Act, without hearing the parties, was an infringement of the applicant's rights enshrined in sections 56, 69(2) and (3) of the Constitution.

That mere allegation, alone, is sufficient to establish locus.

On the reasoning in Meda v Matsvimbo Sibanda & Ors CC10-16, the preliminary point raised by the first respondent stands dismissed.

CC09-23 : TENDAI MASHAMANDA vs BARIADE INVESTMENTS (PVT) LTD and PUWAYI CHIUTSI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT and ELLIOT ROGERS and ATTORNEY GENERAL ZIMBABWE
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

BACKGROUND

PROCEEDINGS IN THIS COURT

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 alleges, that, his right to equal protection of the law, in terms of section 56(1) of the Constitution, was violated by the manner in which the court a quo disposed of the matter.

In the court a quo was an appeal from the decision of the High Court, which decision was not based on the enforcement or interpretation of the Constitution.

The court a quo determined, that, it was clear that the second respondent could not dispose of the property whose sale the court, under HC604/18, had confirmed [which, in our view, was correct].

Once the Sheriff's sale was confirmed by the High Court, the second respondent could no longer deal with or dispose of the property as he wished. The decision under HH604-18 was competently made and should remain extant.

It was further determined by the court a quo, that, the second respondent, being a senior legal practitioner, could not have failed to appreciate that he was acting contrary to law.

It was further determined, that, because there was a pignus judiciale over the property, the second respondent did not have the legal competency to dispose of the property after it was attached.

The decision of the court a quo was made in accordance with the law. I find nothing to fault in the reasoning of the court a quo on this point. The court a quo acted within the confines of the law, and, as determined in Denhere, supra, the Court remarked thus at p24 of the judgment:

“When the Supreme Court, like any other court, sits to decide an appeal, all it is required to do is to dispose of the matter in a manner which is consistent with the law. A judicial decision is the end result of a process that is regulated by law. In other words, a person has a right to a fair judicial process.”

Such determination by the court a quo cannot be said to have been irregular.

I find no basis for the suggestion that the applicant's rights, under section 56 of the Constitution, were violated by the court a quo.

There is no indication as to how the court a quo could have violated the applicant's right to equal protection of the law.

The allegations by the applicant are meritless and thus it is not in the interest of justice to grant an order of direct access to this Court.

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.

Taking into account the above, I am of the considered view that there was no misdirection by the court a quo justifying the grant of direct access.

The applicant is merely dissatisfied by the findings of the Supreme Court on the merits. He was aggrieved that he did not receive a judgment that was in his favour. He seeks a second bite of the cherry.

However, the law does not allow the Court to undertake such a course to review decisions of the court a quo on non-constitutional matters. That is so because decisions of the court a quo are final, except in matters where the court a quo makes a determination on a constitutional matter.

The applicant cannot be allowed to approach the Court in order to attack the correctness of the decision of the court a quo on a non-constitutional matter.

As stated in Lytton Investments supra at pp23-24 of the judgment:

“What is clear is that the purpose of the principle of finality of decisions of the Supreme Court on all non-constitutional matters is to bring to an end the litigation on the non-constitutional matters. A decision of the Supreme Court on a non-constitutional matter is part of the litigation process. The decision is therefore correct because it is final. It is not final because it is correct.”

Once it is accepted that the court a quo's decision was on a non-constitutional matter, the question of the constitutionality of the decision falls outside the jurisdiction of the Constitutional Court.

The jurisdiction of the Constitutional Court cannot be exercised over the matter of the correctness or otherwise of the decision of the court a quo on a non-constitutional matter because doing so would not serve the purpose and objective for which the narrow and specialised jurisdiction was conferred on the Constitutional Court under the Constitution....,.

DISPOSITION

The applicant has failed to establish the basis upon which this Court should grant direct access. We do not find favour in the arguments that there was a violation of the rights enshrined in sections 56, 69(2) and 69(3) of the Constitution. It is therefore not in the interests of justice to grant direct access.

Accordingly, the application is dismissed with no order as to costs.

CC12-23 : DIVINE HOVE vs PARLIAMENT OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

At the end of proceedings in this matter, by unanimous decision, the Court issued an order as follows:

“1. It is declared that in respect of S.I.144 of 2022, which was published in the Gazette dated 19 August 2022, the respondent failed to fulfil its constitutional obligation under section 152 of the Constitution.

2. The respondent is ordered to comply with its constitutional obligation under section 152 of the Constitution by not later than close of business on the 16th of June 2023.

3. There shall be no order as to costs.

4. Reasons for this order are to follow in due course.”

The following are the reasons for the order handed down by the full bench of this Court.

The Background

The applicant is the President of a political party known as the Nationalists Alliance Party and is a member of the Political Actors Dialogue (“the POLAD”). He stood for election to the office of President during the 2018 harmonised elections.

The respondent is the Parliament of Zimbabwe, the constitutional organ reposed with primary law-making authority in Zimbabwe.

The petition before this Court is centred around the allegation, that, the respondent failed to fulfil its purported constitutional obligation of examining every statutory instrument published in the Gazette and considering whether any provision of the statutory instrument contravened any provision of the Constitution.

More specifically, this contention relates to the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), Statutory Instrument 144 of 2022 (S.I.144/22), which was published in the Gazette dated 19 August 2022.

The impugned statutory instrument was published by the Zimbabwe Electoral Commission (hereinafter “ZEC”) on the aforesaid date.

It increased the nomination fee for aspiring presidential candidates in the imminent 2023 general elections and beyond, from US$1,000 to US$20,000. Similarly, the nomination fee for aspiring candidates for National Assembly and Senate elections was increased from US$50 to US$1,000.

It is these hefty and apparently prohibitive hikes, and, in particular, the perceived procedural irregularities that followed the promulgation of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), SI144 of 2022 that drew the ire of the applicant.

In his founding papers before this Court, the applicant averred, that, as an ordinary citizen with aspirations to run for election as President, he would not be able to afford the US$20,000 nomination fee. He added that none of the members of his political party would be able to afford US$1,000 to run for public office as Members of Parliament.

Against this background, the applicant sought an order declaring that Parliament failed to fulfil its constitutional obligation in terms of section 152(3)(c) of the Constitution.

It was contended, that, the respondent had an immutable obligation to examine every statutory instrument published in the Gazette and consider whether any provision of the statutory instrument contravened any provision of the Constitution.

The applicant alleged, that, the respondent had failed to discharge this obligation in respect of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I. 144 of 2022.

He based his standing on the belief that every citizen of Zimbabwe has automatic standing to challenge any failure by an institution of the State to fulfil a constitutional obligation.

It was the applicant's view, that, the use of the words 'examine' and 'consider' in the cited constitutional provision required the respondent to take a serious view of the imperative to protect the supreme law of the land.

In this regard, it was contended that the respondent failed to fulfil its obligation in that it did not treat the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I. 144/22 in accordance with the provisions of section 152(3)(c) of the Constitution, following which it should have produced a report on the constitutionality of the statutory instrument.

Alternatively, it was argued that the fact that the respondent did not find that the statutory instrument infringed the rights of citizens provided for and protected by section 67 of the Constitution was evidence of a failure to “examine” or “consider” the impugned Regulations within the contemplation of section 152(3) of the Constitution.

The appellant took aim at the respondent's perceived “lackadaisical” approach to the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), SI 144/22, which conduct was alleged to have failed to meet the requirement to 'examine' and “consider” within the meaning of section 152(3)(c) of the Constitution.

The applicant averred, that, no reasonable Parliament acting in compliance with the mandatory obligation under section 152(3)(c) of the Constitution would have failed to consider that the Regulations in the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1),Statutory Instrument 144/22 were patently unconstitutional for infringing the electoral and civil rights of citizens under section 67 of the Constitution.

From the applicant's perspective, had the respondent performed its constitutional obligation, the Regulations ought to have been repealed or referred to this Court pursuant to paragraph 9 of the Fifth Schedule to the Constitution.

The requirement to pay the nomination fee, expressly in United States Dollars, was also stated to be an infringement of the rights contained in section 67 of the Constitution.

On the foregoing basis, the applicant sought the following order:

“1. That, it be and is hereby declared that in respect of Statutory Instrument 144 of 2022 which was published in the Gazette dated 19th August 2022, the Respondent (Parliament of Zimbabwe) failed to fulfil its constitutional obligation under section 152(3)(c) of the Constitution of examining every statutory instrument published in the Gazette and considering whether any provision of the statutory instrument contravenes any provision of the Constitution.

2. As a consequence arising from paragraph 1 of this order, that it be and is hereby declared that the Electoral (Nomination of Candidates) (Amendment) Regulations, 2022 (No.1): Statutory Instrument 144 of 2022 are null and void and of no force or effect.

3. There shall be no order as to costs.”

The respondent duly opposed the application.

Its opposing affidavit was deposed to by Jacob Mudenda, the Speaker of the National Assembly.

He refuted the allegation, that, the respondent had failed to fulfil a constitutional obligation. According to the respondent, the provisions of section 152(3)(c) of the Constitution were unambiguous — the obligation to examine every statutory instrument which had been published in the Gazette lay squarely on the Parliamentary Legal Committee (hereinafter “the PLC”).

Accordingly, the said provisions did not impose a constitutional obligation on Parliament itself, as was alleged by the applicant.

Contrary to the applicant's averments, the respondent submitted that the Parliamentary Legal Committee (PLC) did consider the Regulations on 26 September 2022, and, thereafter, resolved “not to issue a non-adverse certificate until they have had a meeting with the Zimbabwe Electoral Commission concerning the fees in Statutory Instrument 144 of 2022.”

Consequently, the Clerk of Parliament wrote a letter, on the same day, to the Zimbabwe Electoral Commission (ZEC) inviting it to appear before the Parliamentary Legal Committee (PLC).

By letter dated 28 September 2022, the Chief Elections Officer of the Zimbabwe Electoral Commission (ZEC) advised the Clerk of Parliament that ZEC was constrained in discussing the matter as it was sub judice. According to the respondent, this was the sole reason that the Parliamentary Legal Committee (PLC) had postponed its consideration of the Regulations until the High Court had passed its determination on their legality.

All in all, the respondent denied that the Parliamentary Legal Committee (PLC) had breached the Constitution in any way.

In any event, the respondent assiduously sought to distance itself from assuming responsibility for the Parliamentary Legal Committee's conduct. The respondent maintained, that, an alleged omission or breach by the PLC did not amount to failure by Parliament itself to fulfil a constitutional obligation.

Submissions by Counsel

Counsel for the applicant submitted, that, the applicant's locus standi was founded on section 2 of the Constitution.

It was described as the supremacy clause which provided a basis for the applicant to vindicate the supremacy of the Constitution as a citizen. He submitted, that, the obligation in terms of section 152(3)(c) of the Constitution was imposed on Parliament by virtue of being specifically imposed on the Parliamentary Legal Committee (PLC).

He referred to decisions of this Court from which it could be inferred that the actions of the Parliamentary Legal Committee (PLC) were attributable to the respondent itself.

He added that the Parliamentary Legal Committee (PLC), being a component of Parliament, was a functionary of the respondent and thus the cited obligation fell squarely upon the latter.

It was also contended, that, there were concessions on record by the respondent to the effect that it had not complied with its constitutional obligation.

Counsel for the applicant insisted that the said obligation could not be delayed by pending litigation on the same issue in the High Court.

This was so despite the import of Standing Order 98(1)(e) of the National Assembly Standing Orders (Public Business) Ninth Edition 2020.

The Standing Order provides that “no member shall, while speaking to a question –
(e)…, refer to any matter on which a judicial decision is pending.”

He submitted that the Standing Order applied only in respect of non–constitutional issues.

Counsel for the applicant also argued, that, the applicant was entitled to rely on the competence of the first respondent to carry out its constitutional obligations and that any perceived failure to pursue an Administrative Law action ought not to non–suit him before this Court.

Per contra, counsel for the respondent submitted, that, the respondent had clearly fulfilled the constitutional obligation in question, contrary to the applicant's position.

He referred to minutes of the Parliamentary Legal Committee (PLC) on record as evidence that the respondent had considered the constitutionality of the impugned statutory instrument. He argued that the process thereafter was only stalled by the Zimbabwe Electoral Commission's refusal to engage the PLC due to the pendency of litigation in the High Court.

He further reasoned, that, there was no timeline for submitting the report from the Parliamentary Legal Committee (PLC) to Parliament and that any order to that effect would be an undue intrusion into its domain.

In response, counsel for the applicant maintained, that, the Parliamentary Legal Committee (PLC) had a duty to examine and report on the constitutionality of the impugned statutory instrument. The two were deemed to be concurrent obligations that could not be separated as was argued on behalf of the respondent.

In this respect, he referred to Standing Order 36(6)(d) which specifically stipulates a twenty-six day period for the Parliamentary Legal Committee (PLC) to submit its report to Parliament.

After some initial reservation, counsel for the applicant accepted, that, a mandamus by the Court would be a competent remedy, consistent with the Court's authority under section 167(2)(d) of the Constitution to interfere with the respondent's processes.

The Applicant's Legal Standing

The applicant's position, as elaborated in oral argument, is that he has approached the Court, not under section 85(1) of the Constitution but in terms of section 167(2)(d) of the Constitution. This forms the basis of his locus standi in this matter as a citizen of the country. As such, he has a right to assume locus standi to vindicate the supremacy of the Constitution in accordance with section 2 thereof.

Per contra, the respondent contends, that, the applicant appears to have conflated the provisions of paragraphs (a), (c) and (d) of section 85(1) of the Constitution and thus has no standing to institute proceedings on behalf of himself as well as the general citizenry and members of his party.

It is trite law that standing is dependent on a direct and substantial legal interest in the subject-matter of the action, which interest could be prejudicially affected by the judgment of the court concerned. This is the basic test that is primarily applicable at common law.

In constitutional cases, however, the test is not as restrictive but is significantly wider.

It is necessary to adopt a broad approach to standing, consistent with the judicial mandate to uphold the Constitution and to ensure that constitutional rights enjoy the full measure of protection, particularly where a matter of public importance is involved: see Ferreira v Levin N.O. & Ors 1996 (1) SA 984 (CC)…,.; Mawarire v Mugabe N.O. & Ors 2013 (1) ZLR 469 (CC); Mupungu v Minister of Justice, Legal and Parliamentary Affairs & Ors CC07-21…,.

In casu, it is abundantly clear that the respondent has misread the application.

The applicant's references to section 67 of the Constitution are not intended to vindicate that right under section 85(1) of the Constitution but to demonstrate that the respondent ought to have found that the impugned statutory instrument violates a fundamental right.

I have no doubt whatsoever, that, the applicant has established a proper basis for his standing in the present matter.

He is a citizen with the noble aspiration of being elected to the office of President of the country. He must surely have a direct and substantial legal interest in any Parliamentary process pertaining to the examination of the constitutionality of regulations governing the nomination of candidates for the presidency.

Consequently, I am amply satisfied that the applicant is endowed with the requisite locus standi in judicio in the present matter.

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

This is a referral from the High Court (“the court a quo”) of a constitutional matter in terms of section 175(4) of the Constitution of Zimbabwe 2013 (“the Constitution”).

The question referred to this Court for determination is:

“Whether or not section 70 of the Police Act, which sets the prescription period of eight (8) months for any person to institute civil proceedings against the Police, is ultra vires section 56(1) and 69(3) of the Constitution and therefore unconstitutional.”

It seems to me that the matter ought to be struck off the roll for two reasons:

(i) The first is that the referral was improperly made. I say this because, the issue of prescription not having arisen in proceedings before the court a quo, that court could not have properly referred the matter to this Court for determination in terms of section 175(4) of the Constitution.

(ii) The second, though ancillary reason, is that the matter set down before the court a quo, at the commencement of which this referral was made, was rendered abortive following the death of the presiding Judge.

The referral of the matter to this Court suffers from these deficiencies and must, as a consequence, be struck off the roll.

The reasons for the foregoing now follow.

FACTUAL BACKGROUND

The applicant is Patricia Dengezi who operates as an informal trader. The first and second respondents are, respectively, Munyaradzi Nyamururu and Xolisan Moyo. The first respondent was employed by the second respondent as a driver of a commuter minibus owned by the second respondent. The third respondent is Champions Insurance Company (Private) Limited, the third-party insurer of the commuter minibus owned by the second respondent. The fourth and fifth respondents, respectively, are the Commissioner General of Police and the Minister of Home Affairs.

The facts of this matter are largely common cause.

The applicant was in the informal business of vending. On 17 April 2017, while selling her wares from a pavement on Chinhoyi Street, close to Robert Mugabe Avenue in Harare, she was involved in a tragic accident. In her company was her son who was aged one year and two months.

In her declaration, she stated that on that fateful day, three officers of the Zimbabwe Republic Police who were carrying out their duties along Robert Mugabe Street threatened to arrest and intimidated certain commuter minibus drivers who were driving their vehicles in the area. Consequently, the commuter minibuses haphazardly sped off, in the process, driving against oncoming traffic moving along Chinhoyi Street, which is a one-way street.

The applicant alleges, that, as a result of the unlawful actions of the Zimbabwe Republic Police, the commuter minibus that was being driven by the first respondent, though travelling in the proper vehicular direction, veered off the road, hit the applicant and “smashed” her son who was killed immediately.

On 9 April 2018, almost a year later, the applicant sued out a summons commencing action out of the High Court at Harare claiming damages arising out of the said road traffic accident.

In her declaration, she made several claims for damages against the respondents.

The applicant's case before the court a quo was that, although the accident was caused by the first respondent, it was members of the Zimbabwe Republic Police who instigated the melee that resulted in the fatal incident. She alleges that the details from the Zimbabwe Republic Police were reckless and negligent and that they ought to have realized that their unlawful actions and intimidatory behaviour would “unleash [a] foreseeable chain of events including the loss of life.”

The third (Champions Insurance Company Limited), as well as the fourth and fifth respondents (Commissioner General of Police and Minister of Home Affairs), entered appearance to defend, and, in their pleas, denied liability.

The third defendant essentially pleaded that it has no knowledge of the facts forming the applicant's cause of action. On their part, the fourth and fifth respondents have pleaded that the actions of the officers of the Zimbabwe Republic Police were not unlawful and that they were not responsible for the death of the applicant's minor child.

That was the essence of their plea.

They said nothing about prescription and whether the claim should be dismissed on that basis. In their separate pleas, they simply prayed that the claim be dismissed with costs.

The applicant replicated to the pleas.

Following that replication, a pre-trial conference was convened before a Judge of the court a quo. For the purpose of that pretrial conference, the fourth and fifth respondents proposed three issues for determination in their pre-trial minute filed a quo. The proposed issues for determination were stated to be:

“1. Whether or not the plaintiff's claim has prescribed in terms of section 70 of the Police Act [Chapter 11;10].

2. Whether or not the police officers negligently caused the accident in question.

3. Whether or not the plaintiff is entitled to damages which are claimed.”

The record of the proceedings of the court a quo reveals that on 16 May 2019, following a pre-trial conference, three issues were referred for trial. These were:

(i) Whether the police officers controlling the traffic along Robert Mugabe Avenue were negligent;
(ii) If so, the quantum of damages payable by the State; and, lastly
(iii) The extent of damages recoverable from the insurance company.

It bears mention at this stage, that, the parties did not regard as an issue for determination the question whether or not the applicant's claim had prescribed in terms of section 70 of the Police Act [Chapter 11:10] (“the Police Act”).

Just before the trial commenced in the court a quo, on 14 February 2022, following what appear to have been informal discussions with the fourth and fifth respondents counsel, the applicant filed an affidavit in support of a request to refer a matter to this Court in terms of section 175(4) of the Constitution.

Therein, the applicant alleged that two issues had arisen, namely:

(i) The constitutionality of section 23(3)(b) and (c) of the Road Traffic Act [Chapter 13:01] (“the Road Traffic Act”); and of
(ii) Section 70 of the Police Act.

The applicant pertinently averred that:

“24. During the course of proceedings today, despite the fact that the Commissioner General and the Minister of Home Affairs had not insisted on prescription, today, they insisted that my matter was prescribed.

25. I could not bring legal proceedings within six months as I was ill, and, in any event, mourning the loss of my child.

26. I however contend, that, section 70 of the Police Act is clearly unconstitutional.

27. Why, for instance, should the police have protection when every other defendant, including the President or large corporations like Delta or Econet, do not have the same six months protection.

28. Clearly, section 70 is unconstitutional and I make reference to the judgment of Justice Tsanga in another related matter.”

Two days later, on 16 February 2022, the parties then filed what they termed a Statement of Agreed Facts “for reference to the Constitutional Court in terms of Rule 108(4) of the High Court Rules, SI 202/2021.”

Therein, the parties outlined the facts that they considered to be “common cause”.

However, contrary to the fourth and fifth respondents plea, to which reference has already been made, the parties purported to agree that “the fourth defendant, [the] Commissioner General of Police, had pleaded prescription based on the fact that the summons was issued way after the 8 months provided for by section 70 of the Police Act.”

The request for the referral of the questions relating to the constitutionality of section 23(3)(b) and (c) of the Road Traffic Act and section 70 of the Police Act was heard by the court a quo, per MAKOMO J, on 14 May 2022, on the basis of the applicant's affidavit filed in support of the said request and the Statement of Agreed Facts.

The reasons for the court a quo's determination on the request were delivered on 10 October 2022.

The court a quo concluded, that, the request to refer the question relating to the constitutionality of section 70 of the Police Act was not frivolous and vexatious and accordingly granted the request. However, the request relating to the question of the constitutionality of section 23(3)(b) and (c) of the Road Traffic Act was found to be frivolous and vexatious and was therefore refused.

Consequently, the court a quo only referred the question relating to the constitutionality of section 70 of the Police Act to this Court for determination and stayed the proceedings before it pending the determination of the question referred to this Court.

Sadly, on 25 December 2022, before this matter could be heard and finalised by this Court, Mr Justice MAKOMO, the presiding Judge a quo, passed on.

APPLICANT'S SUBMISSIONS BEFORE THIS COURT

At the commencement of the hearing, the Court directed the parties to advance submissions on the question whether or not the referral was properly made.

Counsel for the applicant submitted, that, the matter was properly referred to this Court.

This, so he submitted, was because, if a constitutional matter arises in non-constitutional proceedings before a lower court, the lower court has no jurisdiction to itself determine the constitutional matter but must refer the matter to this Court.

In counsel for the applicant's view, the fact that the defence of prescription had not been pleaded by the respondents, as defendants, was not a bar to the raising of a constitutional matter.

Further asked during oral submissions whether the death of the presiding judge a quo had any effect on the validity of the referral, counsel for the applicant contended, that, the Judge a quo had become functus officio on the referral and that his judgment referring the constitutional question to this Court remained extant.

As such, the referral can properly be determined by this Court, and, thereafter, the matter can proceed before another judge of the High Court for a final determination of all the issues raised in the pleadings before the court.

FOURTH AND FIFTH RESPONDENTS SUBMISSIONS BEFORE THIS COURT

Counsel for the fourth and fifth respondents submitted, that, although no evidence had been led before the late Mr Justice MAKOMO, the proceedings had indeed commenced before him. She stated that the “special plea” on prescription was raised in the fifth respondent's pre-trial conference minute but conceded that it was not identified as an issue requiring determination at the trial.

On whether the question relating to the constitutionality of section 70 of the Police Act had arisen before the court a quo, it was her submission, that, the issue indeed arose before MAKOMO J.

ISSUES ARISING FOR DETERMINATION

The main issue that arises before this Court is whether the court a quo properly referred the matter to this Court. Put otherwise, this Court essentially has to determine whether or not section 175(4) of the Constitution, regulating the referral of constitutional matters to this Court, was complied with.

A further but incidental issue that arises from the facts of this case is whether the passing on of MAKOMO J had any effect on the referral. Put another way, the question is whether the referral, in any event, became a nullity following his demise.

This Court, in various decided cases, has stressed, that, in respect of matters referred in terms of section 175(4) of the Constitution, it is always obliged to determine whether a referral was properly made.

If a referral is not properly before the Court, it will be disposed of, without further ado, on that ground alone: see S v Nyathi CC16–19…,.; Muhala & Others v Mukokera 2019 (1) ZLR 294 (CC); Nyagura v Ncube & Others 2019 (1) ZLR 521 (CC)…,.; and S v Mwonzora & Others CC09–15…,.

WHETHER OR NOT THE REFERRAL OF THE CONSTITUTIONAL MATTER WAS PROPERLY MADE

The resolution of the question whether the instant referral was properly made requires this Court to examine whether there was a valid plea of prescription before the court a quo, taken on the basis of the prescriptive period set out in section 70 of the Police Act.

There would have been a need for the court a quo to have decided whether the validity of section 70 of the Police Act had been engaged by the facts that were before it the moment a request to refer a constitutional matter to this Court was made.

If the constitutionality of section 70 of the Police Act had not arisen before the court a quo, there would have been no basis to refer a constitutional matter to this Court.

In considering whether there was a valid plea raising the constitutionality of section 70 of the Police Act before the court a quo, there is need for this Court to examine the law governing the raising of special pleas.

Such an examination does not directly involve the interpretation, protection, or enforcement of the Constitution but is a matter connected with a decision on a constitutional matter.

I digress momentarily to discuss what constitutes an issue connected with a decision on a constitutional matter.

Section 167(1)(b) of the Constitution provides that:

“(1) The Constitutional Court —

(a)…,.

(b) Decides only constitutional matters and issues connected with decisions on constitutional matters, in particular, references and applications under section 131(8)(b) and paragraph 9(2) of the Fifth Schedule;”

We have not, as a jurisdiction, had occasion to clearly define what constitutes “issues connected with decisions on constitutional matters” as provided in section 167(1)(b) of the Constitution.

In this regard, it may be necessary to have regard to a number of decisions by the South African Constitutional Court.

Given that this Court only decides constitutional matters, an issue connected with a decision on a constitutional matter must be preceded by a constitutional matter and the determination of the issue must essentially be inseparable from the decision on the constitutional matter.

In Rushesha & Others v Dera & Others CC24–17…, this court expressed the view that the word “connected” in section 167(1)(b) of the Constitution means that the issue must bear a relationship to the decision on a constitutional matter.

In the leading South African case of Alexkor Ltd and Another v Ritchersveld Community and Another 2004 (5) SA 460 (CC)…, the Constitutional Court remarked that “when any factum probandum of a disputed issue is a constitutional matter, then, any factum probans bearing logically on the existence or otherwise of such factum probandum, is itself an issue 'connected with [a] decision on [a] constitutional matter.'”

In S v Basson 2005 (1) SA 171 (CC)…, the court further remarked that “legal and factual matters that need to be decided in order to determine a constitutional matter are issues connected with a decision on a constitutional matter.”

The enquiry that this Court sets out to make, of whether or not section 70 of the Police Act had been engaged and pleaded a quo so as to give rise to a constitutional matter, is clearly an issue connected with a decision on a constitutional matter.

The issue is connected with the decision that this Court is required to make on the constitutional question as to whether or not the present referral is valid.

Any question as to whether or not a referral was made in accordance with the provisions of the Constitution and is valid is no doubt an important question that this court must determine.

In the past, this Court has held that it has no discretion to condone a departure from the Constitutional provisions regulating the referral of constitutional matters: see Mukoko v Commissioner General of Police & Others 2009 (1) ZLR 21 (S)…,. and S v Kisimusi & Others CC01–14…,.

Bearing the above in mind, I now turn to consider whether the provisions of section 70 of the Police Act had been properly engaged in the proceedings before the court a quo so as to give rise to a constitutional matter.

Put another way, the issue that now arises is whether the validity of the prescriptive period in section 70 of the Police Act had been specially pleaded and therefore arose in proceedings before the court a quo.

It is only if the validity of section 70 of the Police Act properly arose in the proceedings that the question of its constitutionality could have arisen.

It is a settled position in our adjectival law, that, the appropriate procedure available in a situation where a party intends to plead the defence of prescription is through a special plea.

In Brooker v Mudhanda & Anor: Peace Mudhanda & Anor 2018 (1) ZLR 33, 38F-G, a decision of the Supreme Court of Zimbabwe, the court remarked as follows at p38F-G:

“The defence of prescription should not be raised by way of exception but must be specifically pleaded. The plea must set out sufficient facts to show on what the defence is based. However, due to its nature, the plea of prescription is a special plea. Such a plea is provided for in the High Court Rules 1971. Order 21 Rule 137 specifies the manner in which a party wishing to rely on a special plea may raise such.”

Similarly, in Tendayi v Twenty Third Century Systems (Pvt) Ltd SC135–20…, the Supreme Court reiterated the position, that, the defence of prescription must be raised as a special plea. In no uncertain terms, the Court stated that:

“It is settled, that, the defence of prescription must be raised as a special plea for the reason, that, a plaintiff confronted with a claim of prescription may wish to replicate to the objection. This is particularly pertinent where a defendant pleads that a claim has prescribed with a plaintiff replicating that prescription has been interrupted.”

Section 70 of the Police Act and Part IV of the Prescription Act [Chapter 08:11] (“the Prescription Act”) are in pari materia. The provisions of the two statutes, considered together, accentuate the need to raise a plea of prescription by way of special plea.

In this regard, I first cite section 70 of the Police Act which states as follows:

“Any civil proceedings instituted against the State or member in respect of anything done or omitted to be done under this Act shall be commenced within eight months after the cause of action has arisen, and notice in writing of any such civil proceedings and the grounds thereof shall be given in terms of the State Liabilities Act [Chapter 8:15].”

In turn, section 13 of the Prescription Act provides that:

“13 Debts to which Part IV applies

(1) This Part shall, save in so far as it is inconsistent with any enactment which —

(a) Provides for a specified period within which —

(i) A claim is to be made; or

(ii) An action is to be instituted in respect of debt; or

(b) Imposes conditions on the institution of an action for the recovery of a debt;
apply to any debt arising on or after the 1st January 1976.”…,.

It is clear, from the foregoing, that, section 13 of the Prescription Act applies to any claim to be made or action to be instituted in respect of a debt except to the extent different provision is made in another statute.

Given that the Police Act provides for a specific prescriptive period for actions against the State, section 13(1) of the Prescription Act must be interpreted to mean that the Prescription Act applies to and regulates the defence of prescription to the extent that its provisions would not be inconsistent with the Police Act, and, in particular, the prescriptive period delineated in section 70 of that Act.

There are provisions of the Prescription Act that have direct application in proceedings in which a special plea has been raised on the basis of section 70 of the Police Act.

The first is section 2 of the Prescription Act which defines the term “debt” to mean, without limiting the meaning of the term, anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.

The second significant provision of the Prescription Act is section 16, which states thus:

“16 When prescription begins to run

(1) Subject to subsections (2) and (3), prescription shall commence to run as soon as a debt is due.

(2) If a debtor wilfully prevents his creditor from becoming aware of the existence of a debt, prescription shall not commence to run until the creditor becomes aware of the existence of the debt.

(3) A debt shall not be deemed to be due until the creditor becomes aware of the identity of the debtor and of the facts from which the debt arises:
Provided that a creditor shall be deemed to have become aware of such identity and of such facts if he could have acquired knowledge thereof by exercising reasonable care.”…,.

Section 17 then provides, that, if a creditor is prevented by superior force from interrupting the running of prescription in terms section 19(2), and the period of prescription would, but for the subsection, be completed before or on or within one year after the date on which the relevant impediment has ceased to exist, the period of prescription shall not be completed before the expiration of a period of one year which follows that date.

Section 18, in turn, provides for the interruption of prescription by an acknowledgement of liability whilst section 19 itemises instances of judicial interruption of prescription.

Several decisions of the courts in this jurisdiction have passed upon the necessity of determining when prescription began to run in any action in which the defence of prescription is raised and whether or not it was interrupted.

It is trite, that, as a general proposition, prescription generally begins to run from the date when the event giving rise to the claim occurs. However, the date on which a debt becomes due may be different. Prescription may also be delayed or interrupted.

For this reason, in the majority of matters coming before the courts, there is usually need for evidence to be led to establish when it started to run. The other party may also wish to lead evidence to show that the running of prescription was delayed or interrupted.

Thus, in Brooker v Mudhanda & Anor: Peace Mudhanda & Anor 2018 (1) ZLR at 39F, the Court pertinently remarked that:

“In a plea of prescription, the onus is on the defendant to show that the claim is prescribed, but if, in reply to the plea, the plaintiff alleges that prescription was interrupted or waived, the onus would be on the plaintiff to show that it was so interrupted or waived.”

And further, at 41A–B, the Court added:

“…, a special plea enables a litigant to obtain prompt resolution of a dispute because it either delays the proceedings or quashes them. Because of its ability to extinguish a claim, there is need for a judge faced with such a plea to hear evidence from the parties.”…,.

In light of the above, the defence of prescription has to be specifically pleaded and properly established by evidence.

Indeed, the Prescription Act itself provides, in section 20, that the defence of prescription must be specifically pleaded.

In casu, it is evident that the defence of prescription was not specifically pleaded.

A reading of the record of proceedings shows, that, although the issue first arose only in the fourth and fifth respondents draft pre-trial conference minute, it was never persisted with. Nor was any attempt made by the respondents, as fourth and fifth defendants, to amend their plea in order to introduce such a defence.

Before us, counsel for the fourth and fifth respondents accepted this to be the correct position.

The pleadings did not reflect that prescription was an issue. As a defence, it was not even mentioned during the pretrial conference that took place before a judge or in the conference minute prepared shortly thereafter. When the parties appeared before the court a quo on the first day of trial, it was not one of the issues requiring determination by the court.

In its judgment on the request to refer a constitutional matter to this Court, the court a quo, clearly misled by the Statement of Agreed Facts, incorrectly stated that “on filing her summons for damages and other claims, the applicant was met with a plea of prescription” by the fourth and fifth respondents in terms of section 70 of the Police Act.

That could not have been the case given that no such plea of prescription was ever made.

I conclude, therefore, that, the defence of prescription was never properly raised.

It is apparent, that, counsel for both the applicant and the fourth and fifth respondents had informal discussions just before the commencement of the trial. It was during these discussions that it appears the respondents indicated they were of the view that the claim had prescribed.

In the circumstances of this case, one can safely assume that the issue arose in vacuo.

The court a quo could not purport to refer a constitutional matter to this Court in respect of an issue that was not procedurally before it. Accordingly, the referral to this Court was not proper as the issue referred to this Court was not necessary for the court a quo to dispose of any of the issues arising in the matter before it.

In addition, without the benefit of a replication from the applicant on the claim of prescription informally raised by the fourth and fifth respondents, the court could not have assumed that prescription had run its course. The procedure for a referral made it incumbent for the court a quo to verify, in light of the pleadings filed in the matter before it, the accuracy of the Statement of Agreed Facts.

In accordance with the procedure set out in several judgments of this Court, there was a need for the court a quo to determine when the debt became due.

A reading of section 70 of the Police Act reveals, that, the court a quo had to make a specific finding that eight months had elapsed after the applicant obtained knowledge that her cause of action against the fourth and fifth respondents had arisen. The court should also have determined when the debt became due and whether the fact of the applicant's stay in hospital, captured in the parties Statement of Agreed Facts, would have, pursuant to section 17(1) of the Act, had any effect on such prescription.

In the absence of these factual findings, the referral was fatally defective.

In light of the foregoing, the undoubted corollary must be, that, the referral was improper and the matter should be disposed of on this basis.

That said, for the sake of completeness, I proceed to consider the effect, if any, of the demise of the trial Judge on the proceedings before him, including the issues he had referred to this Court.

This too is an issue connected with a decision on a constitutional matter.

THE EFFECT ON THE PROCEEDINGS A QUO OF THE DEATH OF THE PRESIDING JUDGE

Even if prescription had been properly pleaded by the fourth and fifth respondents, a further issue relating to the validity of these proceedings would still have arisen. This question arises from the common cause fact that the presiding Judge a quo, MAKOMO J, died pending the determination of this referral.

It is a hallowed principle of the law, that, the death of a judicial officer has a juridical effect on matters that were partly heard by him or her. In this regard, HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts and Supreme Court of Appeal of South Africa, 5th ed, (2009), state..,.:

“Where a judge is removed from office, whether on account of misbehaviour or infirmity of body or mind, or where a judge is suspended pending a decision on removal from office, he may not thereafter complete matters outstanding at the date of removal or suspension. But, where a judge has resigned from office, such resignation is not a bar to concluding unfinished matters. If the judge does not conclude such matters he becomes functus officio and the same principles that operate when a judge dies or becomes incapacitated will apply. The matters must be tried de novo.”

The point was made more incisively by the High Court in S v Tsangaizi 1997 (2) ZLR 247 (H). At pp248–249 GILLESPIE J remarked as follows:

“In order to determine whether this trial can be commenced afresh, it is therefore necessary to examine the common law relating to the incapacity or unavailability of a judicial officer….,.

The first proposition, that the death or incapacity of a magistrate brings about the nullity of the incomplete proceedings, is entirely correct. The point is exemplified in a number of cases which I shall shortly examine below. The principle is that if during the course of proceedings a judicial officer ceases to have jurisdiction, then, the proceedings up to that point are abortive.”…,.

See also S v Nqobile Sibanda HH59-05 in which similar remarks were echoed by the same court.

A number of other decided cases put it beyond doubt, that, any proceedings commenced before a deceased judicial officer are rendered abortive by his or her death. The circumstance presented by the case of Charmfit of Hollywood Inc v Registrar of Companies & Anor 1964 (2) SA 765 (T) is helpful.

In that case, the Court had to determine whether it could award costs of a previous hearing that was conducted before a Judge who had died before he could give judgment. Departing from the conclusion that had been reached in an earlier case, that a second Judge taking over a matter after the first Judge had become incapacitated could not issue an order of costs of the abortive hearing, the Court stated, at 770B-D, that:

“With great respect, I must differ from that view. The previous hearing merely represents an uncompleted stage of the proceedings with which this Court was and is seized until it gives its final judgment therein. It therefore retains full jurisdiction and discretion in regard to the costs of that hearing as with all other stages and incidents in the proceedings, and can make any special order appropriate to the circumstances in regard thereto in the course of finally deciding and disposing of all issues between the parties still outstanding at this stage of the proceedings (cf. Van der Merwe's Engineering Works v Raath 1948 (4) SA 758 (T); Union Government v Modderfontein 'B' Gold Mines Ltd 1925 T.P.D. 61 at p68).

If no such special order is made, probably such costs would simply follow and be taxed as the costs awarded in the cause, because they would be costs necessarily incurred in the cause of those proceedings….,.

In the result, the application is dismissed with costs, such costs to include the costs of the previous hearing before the late Mr Justice KUPER.”…,.

Similarly, in the case of Protea Assurance Co. Ltd v Gamlase & Others 1971 (1) SA…, the Court held that:

“In the Philipp case, the Court was concerned with a situation where an appeal had been argued before a Judge who had resigned on account of ill-health before giving judgment. In the course of his judgment, BREBNER AJ said:

'It seems to me, that, as in the case of the death of a Judge before giving judgment, the case must be tried de novo.'

This passage, in my opinion, is undoubtedly correct and it is indeed clear to me that precisely the same reasoning must apply in the present circumstances. To paraphrase the words used by TROLLIP J in the Charmfit of Hollywood case, this Court has retained full jurisdiction in regard to all stages and incidents in the proceedings and can make any special order appropriate to the circumstances existing. I have come to the conclusion, therefore, that, the proper course to adopt is to regard the application for leave to sue in forma pauperis as a pending and uncompleted application in this Division and to direct that it be dealt with as if the hearing on 25th May 1965 had not taken place.”

The position is therefore settled, that, the death of a Judge, before giving a final judgment, renders any proceedings commenced before him abortive. Such proceedings must be tried de novo. A subsequent Judge cannot competently take the matter up from where the deceased Judge would have left it.

It may be worth mentioning at this stage, that, there are certain statutes in this jurisdiction which have modified the common law in this regard, especially where a number of Judges hear a matter and one of them becomes incapacitated or dies before the delivery of judgment.

In most cases, the remaining number of Judges are permitted to finalise the matter or a new Judge is assigned to proceed from where the former Judge left: see, for example, section 4(3) of the Supreme Court Act [Chapter 7:13]; section 4(3) of the High Court [Chapter 7:06]; and section 5(2) of the Constitutional Court Act [Chapter 7:22].

During oral arguments, both counsel conceded that the action by the applicant was already before MAKOMO J when the putative referral was made. Following the death of MAKOMO J, the hearing before him, and any procedural stages taken before him, were rendered abortive.

It follows from this, that, the pleadings filed by the parties in the matter were not affected by the death of the judge and that such pleadings will form a basis for a fresh hearing before another Judge of the High Court.

Counsel for the applicant sought to contend, that, the judgment by MAKOMO J, on the request to refer a constitutional matter to this Court, stood on its own and “did not die with Judge.” He added, that, the late Judge, by the time of his death, was functus officio on the request to refer a constitutional matter to this Court.

Put differently, counsel for the applicant contended, that, the High Court had already discharged its jurisdiction on the request to refer the constitutional matter to this Court and, thus, the death of the Judge who granted the request cannot alter the fact that the High Court has already discharged its jurisdiction on that question.

I am unable to find any merit in the above submission.

The misapprehension in counsel's argument stems from his understanding, that, the stage of the proceedings a quo in which the referral of the constitutional matter to this Court was made is severable from the pending trial action.

Indubitably, the hearing conducted on the request to refer a constitutional matter to this Court and the judgment which was passed subsequent to that hearing are part and parcel of the part-heard trial action that was before MAKOMO J.

A request to refer a constitutional matter to this Court must arise during the non-constitutional proceedings of a subordinate court. The determination of the constitutional matter must be necessary for the resolution or completion of the pending non-constitutional matter before the court.

What is of importance is that a determination as to whether a request to refer a constitutional matter would not be frivolous and vexatious lies with the presiding judicial officer in terms of section 175(4) of the Constitution.

In other words, a presiding judicial officer must be satisfied that the resolution of the constitutional matter raised by a party is necessary to enable him or her to dispose of the non-constitutional matter before the court. It cannot be passed, imputed, or foisted on a subsequent judicial officer.

Regard being had to the rationale underlying the principle that, upon the death of a Judge, any case commenced before him must be tried de novo, the submissions by counsel for the applicant in this regard cannot therefore succeed.

It bears restating, that, only the Judge who would have commenced the proceedings and received evidence on the request to refer a constitutional matter to this Court would be in a position to finalize that matter after the determination of the referral by this Court.

In light of the foregoing, it is clear that the court that hears the proceedings that are rendered abortive by the death or incapacity of a Judge retains full jurisdiction and discretion to entertain, afresh, all stages of the pending proceedings.

The late Judge had not, as argued by counsel for the applicant, become functus officio following the referral of a constitutional matter to this Court because the request for the referral, pending determination of the question referred to this Court, represented an incomplete stage of the proceedings before the court. It evidently became abortive upon the death of the Judge who had intended to rely on the resolution by this Court in the finalisation of the matter before him.

Assuming, arguendo, that this Court determines the present constitutional matter referred to it, and, as a consequence, remits the matter to the court a quo together with its determination, the question that would immediately arise is whether another judge of the High Court would have the jurisdiction to resume the proceedings from where the late MAKOMO J left.

The answer must lie in the negative.

Although the court a quo had determined the request for the referral of a constitutional matter to this Court, a second Judge of that court who takes over the matter cannot competently start from the point where the late MAKOMO J left the matter. The obvious reason, well articulated in the above authorities, is that the part-heard hearing before MAKOMO J became abortive upon his death.

Thus, even if the constitutional matter is determined by this Court, another Judge cannot complete a part-heard hearing that is terminated by operation of law.

It is for this reason, that, the High Court retains full jurisdiction in regard to all stages and incidents of the hearing, including any prospective request for the referral of a constitutional matter to this Court on similar grounds.

Accordingly, for the additional reason that the presiding Judge a quo has since died, the referral became a nullity. The referral must therefore be struck off the roll, and, by operation of law, the trial may be recommenced de novo before a different judge; that is, on the basis of the pleadings filed of record in the matter.

DISPOSITION

By way of summary, therefore, the referral that is before this Court is invalid for two reasons:

(i) First, there having been no special plea of prescription, a constitutional matter relating to the constitutionality of section 70 of the Police Act could not have properly arisen before the court a quo.

(ii) Second, and in any event, the death of the presiding Judge a quo operated to render any proceedings that were pending before him abortive. It is axiomatic that the proceedings referred to this Court were intended, on remittal, to enable him to determine all the issues arising in the matter before him....,.

In the result, the Court makes the following order:

“The matter be and is hereby struck off the roll with no order as to costs.”

CC14-23 : JEREMIAH BAMU vs DOUGLAS MWONZORA and MOVEMENT FOR DEMOCRATIC CHANGE–T and ZIMBABWE ELECTORAL COMMISSION and PRESIDENT OF THE REPUBLIC OF ZIMBABWE and MINISTER OF JUSTICE
Ruled By: GOWORA JCC

The question of where the interests of justice lie...,, was persuasively made by MOSENEKE DCJ in De Lacy and Another v South African Post Office 2011 ZACC 17…, while commenting on the requirement that a person may be allowed to directly take a matter to the Constitutional Court when it ...

CC01-14 : KISIMUSI DHLAMINI and GANDI MUDZINGWA and CHINOTO ZULU and ANDRISON MANYERE and ZACHARIAH NKOMO and REGIS MUJEYE and MAPFUMO GARUTSA vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

This is a referral by the High Court for determination under section 24(2) of the Constitution of Zimbabwe of questions of alleged violations of the fundamental rights of the applicants guaranteed under sections 13(1) (right to personal liberty); 15(1) (right not to be subjected to torture or to inhuman or degrading treatment); and 18(1) (right to the protection of the law).

The applicants seek the following relief:

1. A declaration that their rights, in terms of sections 13(1), 15(1) and 18(1) of the Constitution have been violated.

2. An order for a permanent stay of the criminal proceedings before the High Court.

3. An order for mandamus directing the Attorney General to act in terms of section 76(4a) of the Constitution of Zimbabwe and investigate the alleged offences committed against the applicants.

4. A special order as to costs.

At the inception of the hearing before this Court, counsel for the respondent raised four points in limine.

The most important point, the determination of which disposes of the matter, is that the referral to the Supreme Court, by the High Court, of the questions of the alleged violations of the rights of the applicants, at the stage of the proceedings in which it was done, is prohibited by section 24(3) of the Constitution.

The point in limine is properly taken as the referral was incompetent.

The facts are as follows:

It was alleged by the applicants, at their initial remand hearing before the Magistrates Court, that, they were abducted from various places in Harare, Norton, and Masvingo between 25 November 2008 and 13 December 2008 by members of the State security agency.

The applicants alleged, that, they were taken to a secret detention centre, which they later found out to be Goromonzi Prison, where they were kept incommunicado until 22 December 2008. They were allegedly denied access to families, legal counsel, and medical treatment for injuries sustained as a result of torture inflicted by the abductors.

For the purposes of this judgment, the following are the facts which appear from the affidavits of all the applicants:

1. The modus operandi used in the alleged abductions is that each applicant had hands handcuffed behind his back, blindfolded, and driven around to disorientate. They were all detained at Goromonzi Prison.

2. The applicants were released from illegal detention on 22 December 2008 into the custody of the police and detained at various police stations.

3. The alleged abductors tried to conceal the location of their detention centre.

4. Statements were recorded from the applicants on 22 and 23 December 2008 in the absence of their legal representatives.

5. All the applicants were blindfolded when handed over to police stations on 22 December 2008, and when taken to record statements on 22 and 23 December 2008, in a bid to prevent them from seeing their abductors.

On 29 December 2008, the applicants were taken to Rotten Row Magistrates Court for initial remand.

They were each charged with insurgency, banditry, sabotage, or terrorism in contravention of section 23(1)(a)(i) and (ii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Code”) alternatively, malicious damage to property in contravention of section 140 of the Criminal Code.

Medical affidavits from two doctors who examined the applicants while in custody were produced to the court a quo. The reports were to the effect, that, the applicants had evidence of healed bodily injuries consistent with torture. They also exhibited clinical symptoms of psychological trauma.

The magistrate ordered an investigation into the allegations of abduction and torture.

Senior Assistant Commissioner Nyathi tendered his report to the court on 21 January 2009. On the same day, the then Minister of State Security in the President's office deposed to an affidavit in terms of section 296 of the Criminal Procedure and Evidence Act [Chapter 9:07].

He declined to disclose the places where the applicants had been detained and identities of State security agents involved in the investigation of the allegations against the applicants. The Minister denied that State security agents were involved in the alleged abduction, torture, or illegal detention of the applicants - admitting only that they were involved in investigating them for the alleged commission of the offences with which they were charged.

It is common cause, that, the applicants challenged the application by the State to have them placed on remand. They raised, at that stage, the question of their detention as a violation of their fundamental right to personal liberty.

They did not request the magistrate to refer any such question to the Supreme Court for determination.

The magistrate granted the application by the State and placed the applicants on remand on the ground that there was a reasonable suspicion that they had committed the offences with which they were charged.

If the applicants were of the view, that, the decision to place them on remand was a violation of their fundamental right to the protection of the law, they could, as an exceptional remedy, have made that allegation in an application to the Supreme Court for redress in terms of section 24(1) of the Constitution had they requested, before the decision to remand them was made, that the question of violation of their right to personal liberty be referred to the Supreme Court for determination and that request had been refused on the ground that the raising of the question was frivolous and vexatious.

The Supreme Court would then have decided whether the decision to place the applicants on remand was a violation of their right to the protection of the law under section 18(1) of the Constitution.

They did not invoke the provisions of section 24(2) of the Constitution at the time they ought to have done.

The applicants accepted the legality of the decision to place them on remand on the basis of which they were arraigned before the High Court in July 2009.

Prima facie, in finding that there was reasonable suspicion that the applicants committed the offences with which they were charged, the magistrate did not violate the applicants right to personal liberty.

On 25 February 2009, the High Court held, in cases HC42/09 and HC147/09, on review, that, the decision of the magistrate to place the applicants on remand was based on a proper application of the principle and finding on the facts that there was a reasonable suspicion that the applicants had committed the offences of which they were charged.

It is clear that section 24(2)of the Constitution was designed to enable the Supreme Court to adjudicate and consider the question whether there has been or there is likely to be a contravention of the Declaration of Rights, as a court of first instance exercising original jurisdiction.

Section 24(2) of the Constitution provides that:

“(2) If in any proceedings in the High Court, or in any court subordinate to the High Court, any question arises as to the contravention of the Declaration of Rights, the person presiding in that court may, and if so requested by any party to the proceedings, shall, refer the question to the Supreme Court unless, in his opinion, the raising of the question is merely frivolous or vexatious.”

Counsel for the respondent argued, that, what was required of the applicants was the raising of a question of a contravention of the Declaration of Rights and a request that the presiding magistrate refer the question to the Supreme Court for determination. In this case, the question was raised before the magistrate at the initial remand without a request that it be referred to the Supreme Court for determination.

Once the decision to remand the applicants was made, on the ground that there was a reasonable suspicion of their having committed the offences with which they were charged, and that position still prevailed at the time they appeared in the High Court for trial, the prosecution could not be stopped on the basis that they had been tortured or subjected to inhuman or degrading treatment.

There was no legal basis on which the trial judge could refer the questions of contraventions of sections 13(1), 15(1) and 18(1) of the Constitution to the Supreme Court for determination under section 24(2) of the Constitution because the question of the existence of a reasonable suspicion of the applicants having committed the offences with which they were charged had already been determined justifying their arraignment before the High Court.

The High Court could not turn the proceedings before it into an inquiry into the correctness or otherwise of the decision of the Magistrates Court to place the applicants on remand. It could not seek to have the correctness of that decision impugned through the procedure under section 24(2) of the Constitution because the Supreme Court would no longer be exercising original jurisdiction in the circumstances.

The court would not be determining the question of violation of the right to personal liberty but reviewing the decision of the Magistrates Court.

Section 24(3) of the Constitution provides that:

“(3) Where in any proceedings such as are mentioned in subsection (2) any such question as is therein mentioned is not referred to the Supreme Court, then, without prejudice to the right to raise that question on any appeal from the determination of the court in those proceedings, no application for the determination of that question shall lie to the Supreme Court under subsection (1).”

The procedure adopted by the High Court in this case had the effect of interrupting the criminal proceedings before determination, which, in a criminal case, is when the accused is convicted and the final sentence delivered.

The decision on the question whether there was a reasonable suspicion of the applicants having committed the offences they were charged with to justify placing them on remand had been made by a court of competent jurisdiction, and, in the absence of a request that the question whether placing them on remand was likely to violate their right to personal liberty be referred to it for determination, the Supreme Court could not be prevailed upon to exercise its original jurisdiction on the question of the contravention of sections 13(1) and 15(1) of the Constitution.

The case of Muchero & Anor v Attorney General 2000 (2) ZLR 286 (SC) is apposite.

The facts were that the applicants, who were on bail on allegations of fraud and corruption, challenged the right of the State to continue to remand them for trial and applied for their removal from remand on the grounds that no reasonable suspicion existed that they had committed an offence, as required by section 13(2)(e) of the Constitution.

Having heard evidence, the magistrate refused the application.

The applicants counsel requested, that, the question of whether section 13(2)(e) of the Constitution had been contravened be referred to the Supreme Court under section 24(2) of the Constitution. The matter was referred to the Supreme Court.

The headnote reads:

“The referral was incompetent. It should have been requested before the magistrate rendered a decision. Once he had made a decision, the matter could only be dealt with by way of appeal or review.”…,.

In this case, there was no request for a referral of the question, that, placing the applicants on remand was likely to violate their right to personal liberty protected by section 13(1) of the Constitution before the decision was made by the magistrate to remand them on the ground that there was a reasonable suspicion of their having committed the offences with which they were charged.

The magistrate made the decision to remand the applicants for trial notwithstanding the question of the alleged violation of their right to personal liberty having been raised because there was no request for a referral.

The question was therefore not referred, and, the decision of the magistrate, on review, was found to have been consistent with the factors the court was required to consider under section 13(2)(e) of the Constitution.

Section 24(3) of the Constitution applied to the proceedings.

In Jestina Mungarewa Mukoko v Commissioner General of Police & 4 Ors SC03-09, CHIDYAUSIKU CJ, at p2 of the cyclostyled judgment, said:

“Section 24 of the Constitution is peremptory. This court has no discretion to condone a departure from compliance with section 24 of the Constitution. Consequently, failure to comply with the procedure set out in section 24 of the Constitution is fatal to any Court application made in terms thereof.”

The learned CHIEF JUSTICE went on to say at p3:

“Thus, when a matter is before the High Court or any court subordinate to the High Court, such as the Magistrates Court in this case, the question of the contravention of the guaranteed right should be referred to the Supreme Court by the court mero motu or at the instance of any one of the parties to the proceedings.”

Section 24(2) of the Constitution clearly precludes a situation where the question is referred to the Supreme Court in respect of a matter which is no longer necessary for resolution by the lower court in the determination of the dispute before it.

If that were to be permitted, it would mean that the Supreme Court would not be rendering a decision on the question as a court of first instance in the exercise of original jurisdiction.

It was no longer necessary for the High Court to place the applicants on remand, and, ipso facto, to consider whether or not placing them on remand was likely to violate their right to personal liberty; the decision to place the applicants on remand having already been made by the Magistrates Court.

The applicants were before the High Court for trial on the basis of the decision that there was a reasonable suspicion of their having committed the offences with which they were charged.

Accordingly, the matter is struck off the roll with no order as to costs.

CC09-15 : DOUGLAS MWONZORA and OTHERS vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and MAVANGIRA AJCC

After perusing the papers filed of record and hearing counsel, the court dismissed the application and indicated that the reasons for the order would follow in due course.What follow are the reasons for that order.FACTUAL BACKGROUNDThe applicants appeared before a Magistrate at Nyanga on 18 February 2011 facing charges of ...

FACTUAL BACKGROUND

The applicants appeared before a Magistrate at Nyanga on 18 February 2011 facing charges of public violence as defined in section 36 of the Criminal Law [Codification and Reform] Act [Chapter 9:23].

The applicants were legally represented.

At the hearing, the applicants raised a number of complaints regarding the manner of their arrest. The matter was thereafter postponed on a number of occasions to enable the Court to deal with the various issues raised.

On a date that is unclear on the record, but in May 2011, the applicants, without giving notice to the prosecution, applied to the magistrate for the matter to be referred to the Supreme Court in terms of section 24(2) of the former Constitution of Zimbabwe.

They tendered a written application in which they chronicled various violations of their constitutional rights at the instance of the State and other persons.

In the application, the applicants raised the following issues:

(i) Whether or not the manner of their arrest violated their right to liberty protected by section 13(1) of the former Constitution.

(ii) Whether or not the failure by the police to apprehend the persons who had abducted, tortured, and assaulted them violated their right to the protection of the law enshrined in section 18(1) of the Constitution.

(iii) Whether or not the discretion to arrest bestowed upon the police was not improperly exercised.

(iv) Whether or not the assaults perpetrated upon them, as well as the subsequent torture and denial of medical attention, constituted inhuman and degrading treatment.

(v) Whether or not the failure by the State to cause investigations to be carried out into these complaints violated their rights under section 18(1) and 18(1)(a) of the Constitution.

(vi) Whether or not their detention at Nyamaropa and Nyanga police stations was under conditions that constituted inhuman and degrading treatment.

(vii) Whether or not section 121(3) of the Criminal Procedure and Evidence Act [Chapter 9:07], which provides that a person who has been granted bail by a court shall remain in custody for a period of up to seven (7) days once the Attorney-General indicates that he intends to appeal the decision, violates their right to the protection of the law.

During the hearing before the Magistrate, the applicants did not lead any evidence to substantiate these claims.

In his response, the prosecutor indicated, that, the application for referral was opposed.

He denied the suggestion that the police did not have a reasonable suspicion that a crime had been committed at the time they arrested the applicants.

In a terse judgment, the magistrate held that the issues of over detention and alleged kidnapping of the applicants deserved “the attention of the Supreme Court, which court would need to make a proper inquiry.”

On that basis, he then referred the matter to the Supreme Court.

ISSUES FOR DETERMINATION BEFORE THIS COURT

In his submissions before us, counsel for the applicants submitted, that, the rights of the applicants have been violated in several respects. He therefore implored the court to issue various declaraturs, and, as consequent relief, an order permanently staying the criminal proceedings they were being subjected to.

On the other hand, counsel for the State urged this Court to find, that, no proper inquiry had been carried out before the Magistrates Court, and, most importantly, the failure by the applicants to lead evidence to substantiate their allegations was fatal.

He therefore prayed for the dismissal of the application.

WHETHER THE MATTER WAS PROPERLY REFERRED

The position is settled, that, a judicial officer faced with an application for referral has no option but to refer, unless, in the opinion of the Court, the raising of the question is frivolous and vexatious: see Martin v Attorney-General 1993 (1) ZLR 153 (S)…,.

The Magistrate at Nyanga did not, as he should have, ask himself whether the issues raised were not frivolous and vexatious.

Indeed, it appears the magistrate was not sure as to what was required of him.

He made no finding that the application was not frivolous or vexatious. In justifying the referral of the issues to the Supreme Court, he stated:

“Over-detention and alleged kidnapping of some of the accused persons would need the Supreme Court to look into the matter.

It is therefore clear as the issues complained of are also linked to the death of one of the accused persons. The Supreme Court would need therefore to make a proper enquiry (sic).

The court is of the decision, that, the issues raised concerning the declaration of rights are referred to Supreme Court for determination.”

The above remarks clearly demonstrate, that, the Magistrate had no idea what he was supposed to do.

He seemed to think, that, the factual inquiry was to be undertaken by the Supreme Court – clearly a misdirection on his part.

This misdirection resulted in an even more serious irregularity, to which I now turn.

AN APPLICANT MUST ADDUCE EVIDENCE

Various allegations of impropriety had been made against the police and supporters of the Zanu (PF) Political Party. No evidence was led to substantiate these.

The prosecutor made it clear that the facts were in dispute.

Before permitting an accused person to raise the question whether his constitutional rights have been violated, it is a requirement that ample written notice of such an application should be given to the State. This is because the prosecution is entitled to be afforded the time and opportunity to investigate the complaint and to be ready to adduce evidence, if necessary: see S v Banga 1995 (2) ZLR 297.

Further, it is insufficient to make a statement from the bar, as the applicants legal practitioners did in this case.

The applicants should have been called to testify under oath in order to substantiate their complaints that their rights had been violated.

Had that happened, the prosecutor would then have had the opportunity to cross-examine the applicants, and, thereafter, to adduce such evidence as he may have considered necessary to contradict the allegations made by the applicants.

Only after hearing evidence from both sides would the magistrate have been in a position to make findings of fact, which findings he would have been bound to take into account in deciding whether or not to refer the issues raised to the Supreme Court.

In short, it is the responsibility of the court referring a matter to resolve any disputes of fact before making such a referral.

The absence of oral evidence can be fatal to an application of this nature because it completely disables findings to be made on the complaints raised. It is on the basis of those findings that the Supreme Court is called upon to deal with the allegations raised, and, where necessary, afford appropriate relief.

In S v Banga 1995 (2) ZLR 297 GUBBAY CJ remarked…,:

“I trust that I have made it clear, that, it is essential for an accused, who requests a referral to this court of an alleged contravention of the Declaration of Rights, to ensure that evidence is placed before the lower court. It is on that evidence that the opinion has to be expressed as to whether the question raised is merely frivolous or vexatious. It is on that record that the Supreme Court hears argument and then decides if a fundamental right had been infringed. Only in exceptional circumstances will an applicant be permitted to supplement the record of the proceedings before the lower court by the production of affidavits.”

The above remarks have been repeated by this Court in several other cases since then; see, for example, the following:

Matutu v S SC34-13; Hellen Matiashe v (1) The Honourable Magistrate Mahwe N.O. (2) The Attorney General of Zimbabwe CC12-14.

APPLICATION NOT PROPERLY REFERRED

This application was therefore not properly referred to the Supreme Court sitting as a Constitutional Court.

In the circumstances, the Court had no option but to dismiss the application.

CC12-14 : HELEN MATIASHE vs HONOURABLE MAGISTRATE MAHWE N.O. and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and PATEL JA

In this application, the applicant seeks the following relief:

1. A declaration that the refusal by the Magistrate to refer the issues raised by the applicant to the Supreme Court is wrong at law, and, consequently, a breach of the applicant's right to the protection of the law enshrined in section 18(1) of the former Constitution of Zimbabwe.

2. A declaration that the decision by the Attorney-General to proceed with the prosecution of the applicant, more than five years after the alleged commission of the offence, is a violation of the applicant's right to the protection of the law under section 18 of the former Constitution.

3. A declaration that the present application is properly before the Supreme Court.

4. An order, that, the prosecution of the applicant, being a violation of her right under section 18, such prosecution be and is hereby permanently stayed.

5. An order that the respondents pay the costs of this application.

THE BACKGROUND

The applicant and one Cecil Rhaniel Chengetai Muderede (“Muderede”) were engaged in an intimate relationship until about 2005 when the relationship came to an end. At the centre of the dispute giving rise to the present proceedings are two properties:

The first is Number 4 Goodall Avenue, Emerald Hill, Harare registered in the name of Helce Enterprises (Pvt) Ltd, a company incorporated according to the laws of Zimbabwe. It is common cause, that, from the time of its incorporation, the applicant's name appeared on the official records of the company as one of the two directors of the company.

The second property is Number 106 Lomagundi Road, Avondale, registered in the name of another company, Drisdane Investments (Pvt) Limited. It is not in dispute that it was Cecil Rhaniel Chengetai Muderede who purchased this property.

In May 2004, Cecil Rhaniel Chengetai Muderede was specified under the Prevention of Corruption Act [Chapter 9:16].

Following this development, the applicant proceeded to the offices of the Registrar of Companies, where, using the specification of Cecil Rhaniel Chengetai Muderede, she was able to remove the name of Muderede as a director of Helce Enterprises, and, in his place, had the names of her brothers, Kumbirai Matiashe and Kudzai Matiashe, substituted as directors.

On the strength of a Board resolution passed by the new Board, the applicant was able to obtain a duplicate copy of the Deed of Transfer for Number 4, Goodall Avenue, Emerald Hill. The applicant was able, using the same modus operandi, to get another duplicate copy of the title deeds for Number 106 Lomagundi Road, Avondale.

On 7 June 2007, Cecil Rhaniel Chengetai Muderede filed a complaint of fraud against the applicant with the police.

The allegation, on both counts, was that the applicant had misrepresented that Cecil Rhaniel Chengetai Muderede had resigned as a director of Helce Enterprises (Private) Limited and Drisdane Investments (Private) Limited, and, in his place, had appointed her two brothers, Kundai Matiashe and Kumbirai Matiashe. It was alleged, that, on the basis of the misrepresentation, the applicant managed to get duplicate title deeds for both properties.

On 25 June 2007, the applicant made a statement to the police. She was, thereafter, placed on remand.

On 26 February 2008, the charges against the applicant were withdrawn by the State.

However, on 17 July 2012, the applicant was served with summons to appear in court on 6 August 2012.

On 21 August 2012, the applicant then filed an application in the Magistrates Court seeking a declaration that the decision by the Attorney-General to try her after six years violated her right to the protection of the law enshrined in section 18 of the Constitution and that the matter be referred to the Supreme Court in terms of section 24(2) of the former Constitution.

In papers filed before the Magistrates Court, the appellant stated, that, the delay of six years during which no trial had taken place was wholly attributable to the State.

She had always been available to attend court to answer any allegations. Further, she stated that one of her defence witnesses, Doctor Iris Sarupinda, who was present during the time she had a relationship with Cecil Rhaniel Chengetai Muderede, had relocated to Europe and she was not aware of her present whereabouts.

The appellant did not give oral evidence in support of her application.

In the Magistrates Court, it was not in dispute that on 24 July 2009 and 2 November 2010 the applicant filed a complaint with the police against Cecil Rhaniel Chengetai Muderede and his wife Michelle. In the complaint, she alleged that the two had fraudulently used the title deeds for the two properties to secure mortgage loans in favour of Shankuru Estates. She also complained that a Mr Magwere, from the office of the Registrar of Deeds, a Mr Shadreck Beni from Metropolitan Bank, and one Mujokoro, a legal practitioner, had colluded with Muderede and his wife in the fraudulent registration of the mortgage bonds over the two properties.

The State opposed the application for referral of the matter to this Court and led evidence from the Investigating Officer, Detective Inspector Charles Chirove.

The Investigating Officer told the court, that, a number of factors had contributed to the delay in the prosecution of the matter. In 2008 and 2009, the country experienced a severe economic meltdown which affected the ability of the police to carry out its functions. At one stage, the police received reports that Cecil Rhaniel Chengetai Muderede was in South Africa.

Because Cecil Rhaniel Chengetai Muderede could not be located, the charges against the applicant were withdrawn.

Thereafter, in 2009 and 2010, the applicant filed reports with the police, based on the same facts, against Cecil Rhaniel Chengetai Muderede, his wife, and other persons resulting in the arrest of Muderede on fraud charges.

When both cases were sent to court, Cecil Rhaniel Chengetai Muderede queried why his complaint, which had been filed earlier, was being overtaken by the complaint filed later by the applicant. Muderede even approached the Anti-Corruption Commission alleging that the police were giving the applicant preferential treatment.

The applicant also harassed the police and even made complaints to Police General Headquarters against the witness and several of his fellow officers. She was saying she wanted to be consulted before the police made any decision on this matter.

He told the court he formed the opinion that the applicant was throwing spanners into the works to ensure that the matter went nowhere.

In an effort to make some progress, the State then reached an agreement with the applicant and Cecil Rhaniel Chengetai Muderede, that, the case in which Muderede was an accused was to be tried first. In the event that Muderede was convicted, then, the case in which he was complainant would die a natural death. However, in the event that he was acquitted, then, the case in which the applicant was an accused would then commence.

As it so happened, Cecil Rhaniel Chengetai Muderede was acquitted in 2012 as a result of which the applicant was then summoned to appear in court.

It was his evidence, that, it was the applicant who was largely to blame for the delay.

The Magistrates Court was of the view, that, since the applicant had participated in the agreement which had contributed to the delay she cannot now be heard to complain.

On that basis, the court found the application to be frivolous and vexatious.

The court further found, that, the application was an attempt to further delay the proceedings. The court therefore dismissed the application.

Following that decision, the applicant filed the present application in terms of section 24(1) of the former Constitution.

THE ISSUES FOR DETERMINATION

It seems to me that the issues that arise for determination are twofold. These are:

(i) Firstly, whether the matter has been properly brought before this Court in terms of section 24(1) of the former Constitution.

(ii) Secondly, if so, whether the applicant is entitled to a permanent stay of proceedings.

WHETHER THE MATTER IS PROPERLY BEFORE THIS COURT

In dismissing the application for the referral of the matter to the Supreme Court, the magistrate commented:

“Accused now wants to renege from her commitment that she would only be prosecuted if only Cyril Muderede was acquitted because the facts forming the basis of the court charges were similar. Cyril Muderede has now been acquitted, so, the natural interpretation of their agreement should follow. Accused participated in circumstances which caused the delay so she should not cry foul, because, if she had no hand in this matter, the State could have proceeded to cause the trial of both matters at the same time but in different courts.

Accordingly, I find that the application is just meant to further delay proceedings and it is frivolous and vexatious. Accordingly, the application is dismissed.”

It is common cause, that, at the time of the making of the application, there had been a delay of over five years in the prosecution of the matter. That this delay was presumptively prejudicial is without doubt.

The applicant was entitled to challenge the decision of the State to prosecute her on a charge of fraud in respect of which she had been charged more than five years previously. The delay was such as to trigger an inquiry into the possible violation of the applicant's rights to the protection of the law.

It is clear from his reasons for dismissing the request for referral, that, the Magistrate did not ask himself whether a constitutional issue did arise from the proceedings.

He considered that the applicant had contributed to the delay and that she was trying to further delay the day of reckoning. On that basis, alone, he found the application to be frivolous and vexatious.

I am satisfied that the Magistrate was wrong in determining the application on the basis of who was to blame for the delay.

As counsel for the applicant correctly submitted, the Magistrate asked himself the wrong question and inevitably came to the wrong conclusion.

Indeed, the State conceded that the decision to refuse to refer the application was wrong and that it violated the applicant's right to the protection of the law as provided in section 18(1) of the former Constitution.

In these circumstances, the applicant was entitled to approach this Court directly: see Martin v Attorney General & Another 1993 (1) ZLR 153 (S)…,.; Mukoko v Commissioner-General of Police & Ors 2009 (1) ZLR 21, 24B.

This Court must now place itself in the position it would have been in had the Magistrate, as he ought to have done, referred to it the question raised before him.

WHETHER THE APPLICANT IS ENTITLED TO A PERMANENT STAY OF PROCEEDINGS

The factors that this Court is enjoined to consider in an application of this nature are now settled. These are:

(a) The length of the delay;

(b) The reason given by the prosecution for the delay;

(c) Whether the accused person asserted his rights; and

(d) The prejudice occasioned to the accused by the delay.

See In re: Mlambo 1991 (2) ZLR 339 (S)…,.; Fikilini v Attorney-General 1990 (1) ZLR 105, 113A-H (SC).

I proceed to consider each of these factors in turn.

(a) THE LENGTH OF THE DELAY

The delay in bringing the applicant to trial is reckoned from 25 June 2007 when she was charged: see Shumba v Attorney-General 1997 (1) ZLR 589, 592G (S).

The fact that charges were withdrawn in 2008 is irrelevant. The clock continued ticking.

See In re Mlambo 1991 (2) ZLR 339 (S)…,.

The applicant was summoned to appear in court for trial on 6 August 2012. The delay from the time she was cautioned was therefore just over five years.

That delay was inordinate and sufficient to trigger an inquiry into the possible breach of the applicant's rights under section 18(2) of the Constitution.

(b) THE REASONS FOR THE DELAY

In her application before the court a quo, the applicant attached an affidavit in which she explained the basis of her request for the matter to be referred to the Supreme Court.

She did not give oral evidence.

In the affidavit, she stated that she had not contributed to the delay in any way and that it was the State that had employed dilatory tactics in the prosecution of the matter.

The State, however, led evidence from the Investigating Officer.

His evidence was that the police force, like most other State entities in the country, was affected by the economic difficulties of 2008–2009. The result was that the police had no resources to look for Cecil Rhaniel Chengetai Muderede who was in Banket, and, at one stage, was reportedly in South Africa.

Instructions had also been issued for further investigations to be carried out after the withdrawal of the charges in 2008.

The main cause of the delay, however, was the fact that the applicant filed two complaints, in 2009 and 2010, based on the same facts. The result was that Cecil Rhaniel Chengetai Muderede, who had been complainant earlier, also became an accused.

The witness explained that the applicant brought a lot of pressure to bear on the police. She made reports against several police officers, including the investigating officer, to Police General Headquarters. She wanted her complaint tried first.

Cecil Rhaniel Chengetai Muderede, too, complained that the police were giving preferential treatment to the applicant.

It was because of this situation that an agreement was then reached between the applicant, the State, and Cecil Rhaniel Chengetai Muderede, that, the matter in which the applicant was complainant be tried first. If Muderede was convicted, then, his complaint would die a natural death. However, if he was acquitted, then, the case in which the applicant was the accused would be resuscitated.

On that basis, Cecil Rhaniel Chengetai Muderede was tried and was acquitted. Consequently, the applicant was then summoned so that she would undergo trial on the allegations levelled by Muderede.

Although the Investigating Officer was cross-examined at length on this evidence, he remained unshaken and was adamant that the applicant played a significant role in the delay.

The applicant did not give evidence, and, consequently, the evidence given by the Investigating Officer remained largely uncontroverted.

The position is now settled, that, an applicant must adduce evidence and be cross-examined on it: see S v Banga 1995 (2) ZLR 297.

Indeed, this Court has emphasized that the absence of viva voce evidence can be fatal: see S v Nhando 2001 (2) ZLR 84; Matutu v S SC34-13.

In S v Banga 1995 (2) ZLR 297 GUBBAY CJ stressed the need for an applicant to testify on the extent to which, if at all, the cause of the delay was his responsibility, whether he had asserted his rights, and whether any actual prejudice had been suffered as a result.

At page 301D-G, the learned Chief Justice remarked further:

“Moreover, the absence of viva voce evidence completely disables findings to be made, that, the long delay has been the cause of mental anguish and disruption to the business and social activities of the accused, particularly where, as here, his liberty was not interfered with; and that it has impaired his ability to exonerate himself from the charge due to the death, disappearance, or forgetfulness of potential witnesses. See In re Mlambo supra at 352G and 354D-E; S v Demba SC194-94; S v Marisa supra at p9.

I trust that I have made it clear, that, it is essential for an accused, who requests a referral to this court of an alleged contravention of the Declaration of Rights, to ensure that evidence is placed before the lower court. It is on that evidence that the opinion has to be expressed as to whether the question raised is merely frivolous or vexatious. It is on that record that the Supreme Court hears argument and then decides if a fundamental right had been infringed.”

On the basis of the evidence adduced before the court a quo, the position may be summarized as follows:

The delay between June 2007, when the applicant was charged, and the year 2009 is attributable to the State.

However, that period was explained by the State.

When the charge was withdrawn in 2008, it had not been possible for the police to contact Cecil Rhaniel Chengetai Muderede. There also had been instructions for some aspects of the case to be further investigated. Further, this was the time of hyperinflation and the police had no resources to look for Muderede.

This Court can take judicial notice of the fact that, indeed, 2008 and 2009 were very difficult years and even the operations of this Court were affected owing to the economic situation then prevailing. It was a situation that affected Government and the citizenry at large.

In my view, that explanation cannot be said to be unreasonable.

The delay after 2009 is explained by the fact, that, the applicant filed criminal complaints against Cecil Rhaniel Chengetai Muderede, Muderede's wife, and other persons involved in the registration of the bond on the two properties.

The investigating officer explained the difficult situation he and other officers found themselves. They had two dockets on essentially the same facts. The complainant in the one case was the accused in the other.

He explained the pressure that was brought to bear on the police officers by the applicant. The applicant made complaints to Police Headquarters and investigations into her complaints were instituted.

The dilemma that faced the prosecuting authorities, was, which case to prosecute first.

The applicant wanted the case in which she was complainant to be tried first whilst Cecil Rhaniel Chengetai Muderede was insisting that his complaint be tried first as it was first in time.

It was against that background that an agreement was reached between the State, the applicant, and Cecil Rhaniel Chengetai Muderede, that, the applicant's complaint be tried first, and, in the event Muderede was convicted, then, his complaint would die a natural death, and, if not, the applicant would then stand trial.

Indeed, Cecil Rhaniel Chengetai Muderede was tried and acquitted.

It was when the State then sought to proceed with the prosecution of the applicant that she then filed the application for stay of criminal proceedings.

In my view, whilst the State, being dominus litis, should have been more assertive, the reality is that the State was faced with a difficult question given the allegations and counter-allegations made by both, as to whom to prosecute first between the two.

The delay was occasioned by this confusion and the agreement that Cecil Rhaniel Chengetai Muderede be prosecuted first.

The explanation, in my opinion, is acceptable. It is important that one does not take an armchair view of the situation that arose.

In all the circumstances, I am of the view, that, the State has proffered a reasonable explanation for the delay.

(c) WHETHER APPLICANT ASSERTED HER RIGHTS

It must be accepted that, in March 2008, when a further remand was refused, this was at the instance of the applicant. To that extent, therefore, she asserted her rights.

However, in 2009, the applicant also filed a complaint on the same facts.

The police investigated both complaints. Two dockets were opened. Both the applicant and Cecil Rhaniel Chengetai Muderede were alleging that the police were not impartial.

Clearly, during this time, the applicant was aware, or ought to have been, that the State wanted to prosecute her. She is said to have approached Police Headquarters making a number of allegations against certain police officers.

She did not, during this period, seek to assert her rights.

Instead, she went along, and, only after Cecil Rhaniel Chengetai Muderede's acquittal, and the decision by the State to prosecute her, did she then file the application to permanently stay the criminal proceedings against her.

The totality of the circumstances suggests, that, whilst in 2008 she asserted her rights; from 2009 she did not, and was content to go along in the hope that perhaps the criminal allegations would go away.

(d) THE PREJUDICE OCCASIONED BY THE DELAY

The issue of prejudice should be assessed in the light of the interest of the accused which the speedy trial right was designed to protect. Three such interests have been identified. These are:

(i) To prevent oppressive pre-trial incarceration;

(ii) To minimize anxiety and concern of the accused; and

(iii) To limit the possibility that the accused will be impaired in his defence.

See Fikilini v Attorney-General 1990 (1) ZLR (SC)…,.

In her affidavit, both in the court a quo and before this Court, the applicant says her friend, Dr Iris Sarupinda, who was present at the time the companies were formed, has relocated to Europe and her present whereabouts are unknown.

This case is a good example why viva voce evidence is essential in an application of this nature.

The applicant does not say what evidence, exactly, Doctor Sarupinda would give in her defence.

She does not say whether she suffered any anxiety during this period. Because the applicant did not give evidence, the State was not given the opportunity to cross-examine her on these issues. She does not say when the doctor left the country and what efforts she has made to trace her current whereabouts.

In any event, the formation of a company is never without formality. Various documents have to be filed showing the shareholding, directorship, registered office, etc, of a company.

It is not suggested that this documentation is no longer available.

The suggestion that the absence of Doctor Sarupinda will prejudice her is a bald one, and, in my view, would not, in the absence of further substantiation, justify a permanent stay of the proceedings against her.

DISPOSITION

In my view, no justification for a permanent stay of the criminal proceedings pending against the applicant has been shown. Put another way, the suggestion that the right to a fair trial within a reasonable time has been contravened is not sustainable on the facts of this case.

In the result, therefore, the application must fail.

The application is accordingly dismissed with no order as to costs.

CC06-16 : SAMUEL NKOMO vs MINISTER OF LOCAL GOVERNMENT, RURAL & URBAN DEVELOPMENT and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and GOVERNMENT OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

By reason of an allegation by the applicant of a breach of his fundamental right, enshrined in section 56(1) of the Constitution, this application gained direct access to the Constitutional Court (“the Court”) through the front door, which is section 85(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 ...

THE APPLICATION

The applicant averred, that, he is a Member of Parliament for Lobengula Constituency in Bulawayo (having been so elected in the harmonised elections held on 31 July 2013) and residing in Bulawayo. He charges the respondents, and, in particular, the first respondent who is the Minister responsible for issues of local Government, with a violation of section 267 of the Constitution.

This is because of their alleged failure to bring about the enactment of such an Act of Parliament as would give effect to the provisions of Chapters 2 (which sets out the national objectives) and 14 (which deals with devolution and setting up of provincial governance) of the Constitution of Zimbabwe thus bringing into operation devolution in Zimbabwe.

He alleges, that, the failure of the respondents, since 1 August 2013 when the full Constitution took effect, to bring a draft Bill before Parliament for enactment constitutes a breach of sections 2 (which renders conduct inconsistent with the Constitution invalid to the extent of the inconsistency) and 5 (this section defines the tiers of Government in Zimbabwe, one of them being Provincial and Metropolitan Councils) of the Constitution.

He therefore seeks the following relief:

“IT IS ORDERED THAT:

1. The respondents failure to enact the law covered and as envisaged in Chapter 14 of the Constitution, in particular, sections 267(2), 273(4) and 270(2) of the Constitution of Zimbabwe, is a breach of the Constitution of Zimbabwe.

2. The failure by the respondents to enact the laws necessary to operationalize Chapter 14 in so far as it relates to Provincial Governance is a violation of the applicant's right to equal protection and benefit of the law as defined by Article 56(1) of the Constitution.

3. The respondents must bring before Parliament such a Bill or Bills as covered by sections 273(4), 267(2) and section 270(2) of the Constitution of Zimbabwe within 45 days from the date of issuance of this order by the Court.

4. That respondents, jointly and severally, each paying the other to be absolved pays costs of suit.”

I note here, that, section 273(4) of the Constitution does not exist.

Section 273 of the Constitution, in subsections (1) and (2) makes provision relating to the establishment and functions of provincial and metropolitan councils and for the filling of vacancies therein.

The application is opposed by the respondents.

The first respondent denied any neglect in bringing the Bill before Parliament. He annexed to his opposing affidavit a draft Bill which he termed a working draft. He explained that legislation of such importance cannot be hurriedly placed before Parliament and that he is still in the process of carrying out the necessary consultations with the various entities as prescribed by section 267(2)(b) of the Constitution.

The respondents also contend, that, the applicant has not, save for a mere statement alleging an infringement of his right conferred by section 56(1) of the Constitution, to equal protection and benefit of the law, demonstrated how that right has been infringed by the respondents. Nor has the applicant adduced any evidence to substantiate his allegation that “the State is limping” because there are no metropolitan and provincial councils as provided for in section 5 of the Constitution.

It is further contended by the respondents, that, the second respondent's responsibility for bringing legislation before Parliament extends only to those matters which fall under his portfolio and that the Bill envisaged by section 267 of the Constitution is not one of those matters.

In any event, so averred the respondents, a reasonable period was required within which to produce the legislation in question and it could not be hurried through within the period of 45 days suggested by the applicant.

It was submitted that the application was devoid of merit and ought to be dismissed with costs.

LOCUS STANDI

The applicant states his standing to bring this application as follows:

“9.1 I believe, that, as an ordinary citizen, and, more importantly, as a Member of Parliament, I have a right to bring this application before this Honourable Court. The issue of devolution is key and central in the part of the country I come from and in the Constituency I represent. I was chosen to represent my Constituency which expects me to serve in the Bulawayo Metropolitan Council and represent their interests. I want to serve in this important institution so that it can perform and execute its developmental roles as defined by the Constitution.

9.2 Moreover, I believe that any citizen has and should have a general right to bring any application before this Honourable Court where the government of the day, or any other Constitutional body, is disobeying or disrespecting or not enforcing or implementing any mandatory provision of the Constitution. This right exists and should exist whether or not that breach or omission is outside Chapter 4 of the Constitution of Zimbabwe. Put in simple terms, a citizen's right to approach this Honourable Court cannot, and should not, be restricted to a complaint founded on breach of the declaration of rights that are set out in Chapter 4 of the Constitution of Zimbabwe.

9.3 Besides, to the extent that I have in fact alleged a breach of a fundamental right, I have a right to approach this Honourable Court, as I hereby do, in terms of section 85 of the Constitution of Zimbabwe. Section 85(1)(a) and (d), being the specific legs that I bring this application should it be restricted to the narrow question of breach of declaration of the rights defined in Chapter 4 of the Constitution of Zimbabwe.”

The applicant's stance is thus twofold:

(i) Firstly, he, as a Member of Parliament is automatically entitled to be a member of the Bulawayo Metropolitan Province. By virtue of section 269(1)(c) of the Constitution, all members of the National Assembly whose constituencies fall within the Metropolitan Province concerned, are automatic members of the Metropolitan Council. Thus, his constitutional right, as bestowed by section 269 of the Constitution has been denied by the respondents failure to enact the legislation in question.

More specifically, the applicant has been denied the “responsibility and duty for the social and economic development activities in the province. This includes the right to co-ordinate and implement governmental programs in the province, the right to plan and implement measures for the conservation, implementation, and management of natural resources in the province, and, of course, the right to promote tourism in the province.”

Accordingly, so the applicant avers, he has the right to approach this Court for the constitutional mandamus sought in the draft order because the respondents are in breach of “not only the provisions of Chapter 14 by default, but are acting against the concept of a paradismic state as defined and captured in section 8 of the Constitution.”

(ii) The second ground on which he bases his locus standi is that, in denying him the benefit of Chapter 14 of the Constitution, the respondents are “in fact breaching not only Article 56(1) of the Constitution in so far as it protects the applicant, but, also denigrating the supremacy of the Constitution.”

At p7 of the application he avers:

“In any event, to the extent that Provincial governance, as covered by Chapter 14 (of the Constitution), is a right and expectation given to me and other citizens by law, the respondents, by their inaction, are denying me equal protection and benefit of the law. This therefore means, that, their inactions are in breach of my constitutional right to equal protection and benefit of the law as defined by section 56(1) of the Constitution of Zimbabwe.

I would therefore pray that this honourable court must respectfully compel the respondents to respect my right covered under 56(1) of the Constitution, by obliging the same to gazette and bring before Parliament a Bill as covered by the aforesaid sections 267 and 273(1) of the Constitution of Zimbabwe. This is the second leg and basis of my constitutional application to this Honourable Court.”

In terms of section 85 of the Constitution, certain persons may approach a court directly for the vindication of a fundamental right allegedly infringed or likely to be infringed. It provides as follows:

“85 Enforcement of fundamental human rights and freedoms

(1) Any of the following persons, namely:

(a) Any person acting in their own interests;

(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 interests 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.

(2) The fact that a person has contravened a law does not debar them from approaching a court for relief under subsection (1).

(3) The rules of every court must provide for the procedure to be followed in cases where relief is sought under subsection (1), and those rules must ensure that:

(a) The right to approach the court under subsection (1) is fully facilitated;

(b) Formalities relating to the proceedings, including their commencement, are kept to a minimum;

(c) The court, while observing the rules of natural justice, is not unreasonably restricted by procedural technicalities; and

(d) A person with particular expertise may, with the leave of the court, appear as a friend of the court.

(4) The absence of rules referred to in subsection (3) does not limit the right to commence proceedings under subsection (1) and to have the case heard and determined by a court.”

The submission by the respondents, in their heads of argument, that, at the time of the hearing, the applicant was no longer a Member of Parliament is common cause.

I agree with the submission on behalf of the respondents, that, the applicant could not found his locus standi on his former status as a Member of Parliament.

The applicant, however, faces a more serious hurdle.

The right allegedly infringed is not a fundamental right enshrined in Chapter 4 of the Constitution.

Accordingly, an approach in terms of section 85 of the Constitution, to vindicate the alleged infringement of sections 267, 270 and 273 of the Constitution, is not available to the applicant.

I find no merit in the applicant's averment in paragraph 9.2 of his founding affidavit (quoted above)…, that, anyone should be allowed to bring any constitutional application before this Court.

To allow this totally unrestricted approach would be a violation of the Constitution which has restricted the direct approach to the vindication of fundamental rights (see section 85(1) of the Constitution) and has itself outlined other methods (see, for example, section 175 of the Constitution) of approach to this Court.

Thus, to use the words of the applicant 'the first leg' on which the application is based cannot stand.

CC06-16 : SAMUEL NKOMO vs MINISTER OF LOCAL GOVERNMENT, RURAL & URBAN DEVELOPMENT and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and GOVERNMENT OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

In Loveness Mudzuri Anor v Minister of Justice, Legal Parliamentary Affairs N.O. 2 Ors CC12-15..., MALABA DCJ, delivering the judgment of the Court, held, that, an applicant should confine himself to one of the capacities set out in section 85(1) of the Constitution.At p8 ...

CC10-21 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY (ARDA) and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

This is an application for direct access to this Court made in terms of section 167(5) of the Constitution of Zimbabwe 2013 (“the Constitution”) as read with Rule 21 of the Constitutional Court Rules 2016 (“the Rules”).

The applicant intends to approach the Court, in terms of section 85(1) of the Constitution, seeking an order that his rights, as enshrined in the Constitution, were infringed by the first respondent's Non-Executive Board members, its Board, the arbitrators awards, Labour Court judgments, and the Supreme Court.

The rights so infringed being:

(i) The right to equal protection of the law in terms of section 56(1) of the Constitution;

(ii) The right to privacy in terms of section 57(c) and (e) of the Constitution;

(iii) The right to access information in terms of sections 62(2) and 62(3) of the Constitution;

(iv) Labour rights in terms of sections 65(1) and 65(4) of the Constitution;

(v) The right to administrative justice in terms of sections 68(1) and 68(2) of the Constitution;

(vi) The right to a fair hearing in terms of sections 69(2) and 69(3) of the Constitution; and

(vii) The right to property in terms of sections 71(3) and 71(4) of the Constitution.

At the commencement of the hearing, counsel, on behalf of the Attorney-General, took a preliminary point regarding the citation of the Attorney General as a party to these proceedings.

It was her view, that, there was no law being impugned in the application, and that, as a consequence, the joinder of the Attorney-General as a party was irregular. She applied for his removal as a party to the proceedings.

The applicant was of the view that the Rules required his citation, but, was constrained to concede that the citation had been done in error. Counsel, on behalf of the first respondent, did not object to the application, which was granted by consent.

The Attorney General was, therefore, removed from the proceedings and excused from further participation.

This left one respondent as a party, and, any reference to the respondent will be in respect of the first respondent herein.

FACTUAL BACKGROUND

The applicant was formerly employed by the respondent as its General Manager cum Chief Executive Officer. On 26 February 2009, he was sent on special leave, and, on 19 May 2009, he was notified by the respondent of its decision to terminate his employment.

Aggrieved by the decision to terminate his employment, the applicant filed a complaint of unfair dismissal. The matter proceeded to arbitration. The arbitrator found in his favour, set aside the dismissal, and ordered the reinstatement of the applicant with effect from the date of his dismissal.

Thereafter, negotiations for reinstatement having failed, the matter was, again, referred to the arbitrator for quantification of damages in lieu of reinstatement. The arbitrator quantified his award for damages in lieu of reinstatement and ordered the respondent to pay the same.

The applicant, being dissatisfied with the arbitrator's award, appealed to the Labour Court on several grounds pertaining to the question of his reinstatement, the date of termination of his employment, his correct monthly salary, and his entitlement to contractual benefits.

The respondent, in turn, cross-appealed, defending the propriety of its decision not to reinstate the applicant and challenged the arbitrator's award of punitive damages, and, further to this, his failure to deduct certain amounts allegedly owed by the applicant to the respondent.

The Labour Court dismissed the appeal and partially allowed the cross appeal to the extent of setting aside the arbitrator's award of punitive damages.

Consequently, the applicant appealed to the Supreme Court, and, the Court ordered a minor favourable adjustment to the contractual benefits that the applicant was entitled to. The matter was thereafter remitted to the arbitrator to deal with the adjustment.

Before the arbitrator, the applicant raised several preliminary issues, which were dismissed. The applicant proceeded to appeal against that interim award to the court a quo.

That appeal was struck off the roll on the basis that he had improperly appealed against an interim order.

Aggrieved, the applicant filed an application for leave to appeal to the Supreme Court. The matter was set down for the hearing of the application for leave to appeal at which stage the applicant made an oral application for the joinder to those proceedings of an application for referral to this Court.

The application for joinder was dismissed, and the two matters were heard separately.

In its judgment, viz, Erickson Mvududu v Agricultural and Rural Development Authority LC/H/23/21 dated 26 March 2021, the Labour Court made a finding that the application for referral was frivolous and vexatious. The application for leave to appeal to the Supreme Court was still pending at the time of the hearing of this application.

It proceeded to dismiss the application for referral.

Aggrieved by the dismissal of the referral application, the applicant filed the present application on 21 April 2021.

Even though he was the party bringing the suit, contrary to settled procedural principle, the applicant raised a number of preliminary issues for determination.

He averred, in limine, that, the respondent had no authority to terminate his employment, to appoint, suspend, or discharge him, to pay such remuneration and allowances to him, and to grant such leave of absence to him, being a Board member in terms of the Agricultural and Rural Development Authority Act [Chapter 18:01] (“the Act”).

As such, he submitted that the arbitrator, and all courts involved in the matter, ought not to have granted audience to the respondent without first determining the issue of its locus standi in judicio.

In so far as the judgment of the Labour Court is concerned, the applicant contends that the decision violates his right as enshrined in section 56(1) of the Constitution. He avers, that, the conclusion that his application was frivolous or vexatious, was, in itself, a violation of the Constitution.

His argument is that the conclusion by the Labour Court, that, the decision of the Supreme Court on the matter could not be challenged was outside the scope of sections 44 and 45 of the Constitution.

He contended, that, where a court misconstrues a law, applies it incorrectly, or acts outside the law, there exists a prima facie infringement of the right to equal protection of the law.

It was the applicant's contention, that, the existing judgments in this matter were obtained through fraudulent misrepresentation of facts by the respondent who lied to the courts and misrepresented to the courts that it had powers to terminate the applicant's employment when it did not have such powers. In that regard, he alleged that there was no termination in the first place.

As such, he alleged that the application was neither frivolous nor vexatious as found by the Labour Court.

The applicant, therefore, submitted that his application enjoyed prospects of success as the Board, which included him, was not the appointing authority, and, therefore, had no powers to terminate or discharge him, neither did the respondent.

He also contended, that, his salary was incorrectly calculated and that the courts misconstrued the law or acted outside the law to the extent that they rendered improper decisions.

It is on this premise that the applicant argued that his rights had been infringed.

He submitted, that, he has no other remedy and stated that there was no constitutional matter before the Supreme Court; hence there was no room to appeal.

The application was opposed by the respondent.

It averred, that, the present application for direct access was improper as there was an application for referral to the Constitutional Court that was dismissed by the Labour Court, which raised similar issues to the ones that the applicant was now raising.

It was also argued, that, the present application did not raise any constitutional issues but that the essence of the application was to seek the re-opening of the labour issues between the parties, which have been dealt with conclusively up to the highest court of the land.

It was further contended, that, in the draft order of the intended substantive application, what the applicant was seeking was the setting aside of all decisions and payment of alleged arrear salaries and benefits, thereby indirectly seeking reinstatement.

It was submitted that issues to do with unlawfulness or otherwise of the termination of the applicant's employment contract, and the remedy therefor, had already been determined to finality by the Supreme Court and hence the matter was now res judicata.

In that regard, the respondent submitted that the application was frivolous and vexatious, and, further to that, it was not in the interests of justice that it be granted as it did not enjoy any prospects of success.

It did not raise constitutional issues.

It was also submitted, that, in all proceedings leading up to the Supreme Court, the applicant never, at any stage, challenged or disputed the respondent's standing in the proceedings.

Lastly, it was averred that the applicant had another remedy, which is to seek the enforcement of the damages which he was awarded for the alleged unfair dismissal.

In the notice accompanying the present application for direct access, the applicant makes the statement, that, he is seeking leave following upon the dismissal of his application for referral of a constitutional question to the Court.

It becomes pertinent, therefore, to determine whether or not this is the type of application contemplated by law consequent to a dismissal of an application for referral, and, if so, whether or not the application as currently framed, is properly before the Court.

Whether this matter is properly before the Court

The Labour Court had before it an application for the referral of alleged violations of the applicant's rights by all the parties and entities mentioned above. The facts upon which the application for referral was based are identical to those alleged in the application for direct access.

In view of the procedure adopted by the applicant, it becomes necessary, for the sake of completeness, that, the relief sought before the Labour Court, and this Court, be set out in full.

The constitutional issues that the applicant sought to be referred were the following:

1. That, the Non-Executive Board members, the respondent's Board, or the respondent had no and have no locus standi and have no right to be heard in this court in terms of sections 4, 6, 7, 8, 9, 11, 13, 23, 20(1) First Schedule [section 21(1) (sic)] – POWERS OF AUTHORITY, paras 12 and 33 of the Agricultural and Rural Development Authority Act [Chapter 18:01] as read with section 5 of Statutory Instrument 15 of 2006 to take any action it took in this matter.

The Arbitrators awards, Labour Court judgments and Supreme Court judgment are nullities at law.

The Non-Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts are infringing the appellant's fundamental rights as enshrined in sections 11 and 18(1) of the former Constitution of Zimbabwe and sections 3(1)(a), 3(1)(b), 3(1)(c), 3(1)(h), 44(2), 47, 56(1), 57(c), 65(1), 65(4), 68(1), 68(2), 71(3), 71(4), 85(1), and 165(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

2. The Non-Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts have no authority to terminate the applicant's contract of employment in terms of sections 23, 20(1) First Schedule [section 21(1)] (sic) – POWER OF AUTHORITY, paras 12 and 33 of the Agricultural and Rural Development Authority Act [Chapter 18:01] as read with section 5 of Statutory Instrument 15 of 2006.

The Non Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts are infringing the appellant's fundamental rights as enshrined in sections 11 and 18(1) of the former Constitution of Zimbabwe and sections 3(1)(a), 3(1)(b), 3(1)(c), 3(1)(h), 44(2), 47, 56(1), 57(c), 57(e), 62(2), 62(3), 65(1), 65(4), 68(1), 68(2), 68(3), 71(3), 71(4), 85(1), and 165(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

3. The Non-Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts have no authority to unilaterally refuse and endorse the refusal to reinstate the applicant in terms of section 89(2)(c)(iii) of the Labour Act [Chapter 28:01], sections 23, 20(1) First Schedule [section 21(1) (sic) – POWERS OF AUTHORITY, paras 12 and 33 of the Agricultural and Rural Development Authority Act [Chapter 18:01] as read with section 5 of Statutory Instrument 15 of 2006.

The Non Executive Board members, the respondent, the Arbitrators and the courts are infringing the appellant's fundamental right as enshrined in sections 11(a) and 18(1) of the former Constitution of Zimbabwe and section 56(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

4. The Non-Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts have no power to violate the applicant's right to protection of the law by ordering quantification of damages without a legal termination of the applicant's contract of employment.

The Non-Executive Board members, the respondent's Board, the respondent, the Arbitrators and the courts are infringing the appellant's fundamental rights as enshrined in section 20(1) First Schedule [section 21(1) (sic)] – POWERS OF AUTHORITY, paras 12 and 33 of the Agricultural and Rural Development Authority Act [Chapter 18:01]; sections 6 and 7 of the Labour Act [Chapter 28:01]; section 5 of Statutory Instrument 15 of 2006; sections 11(a), 16(1), 16(3) and 18(1) of the former Constitution of Zimbabwe and sections 3(1)(a), 3(1)(b), 3(1)(c), 3(1)(h), 44(2), 47, 56(1), 57(c), 57(e), 62(2), 62(3), 65(1), 65(4), 68(1), 68(2), 68(3), 71(3), 71(4), 85(1), and 165(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

5. In casu, the Non-Executive Board members, the respondent's Board, the respondent, the arbitrators and the courts have no authority to invoke the principle of retrospectivity without legal termination of the applicant's contract of employment.

The Non-Executive Board members, the respondent's Board, the respondent, the arbitrators and the courts are infringing the appellant's fundamental rights as enshrined in sections 11, 18(1) of the former Constitution of Zimbabwe and sections 3(1)(a), 3(1)(b), 3(1)(c), 3(1)(h), 44(2), 47, 56(1), 57(c), 57(e), 62(2), 62(3), 65(1), 65(4), 68(1), 68(2), 68(3), 71(1), 71(3), 71(4), 85(1), and 165(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

6. The applicant's backpay (salaries and benefits), insurance benefits, and pension benefits are vested rights which cannot be taken away without compensation.

The respondent's management, the Non-Executive Board members, the respondent's Board, the respondent, the arbitrators and the courts cannot take away the applicant's salary and benefits in terms of section 13(2) of the Labour Act [Chapter 28:01].

The respondent's management, the Non-Executive Board members, the respondent's Board, the respondent, the arbitrators, and the courts are infringing the appellant's fundamental rights as enshrined in section 16(1) of the former Constitution of Zimbabwe and sections 66(2), 62(3), 71(1), and 71(4) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

7. The Non-Executive Board members, the respondent's Board, the respondent, the arbitrators, and the courts have no authority to set the remuneration of the applicant in terms of section 20(1) First Schedule [section 21(1)(sic)] – POWERS OF AUTHORITY, para 12 of the Agricultural and Rural Development Authority Act [Chapter 18:01], section 161(1) of the former Constitution of Zimbabwe and section 71(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

8. The applicant's premature termination of employment, illegal termination of employment and/or invoking the principle of retrospectivity take away the applicant's vested right to back-pay (salaries and benefits) and infringe the appellant's fundamental rights as enshrined in section 16(1) of the former Constitution of Zimbabwe and sections 62(2), 62(3), 71(1) and 71(4) of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

In the meantime, the relief sought from the Constitutional Court, following the grant of an order for direct access, is framed in the following manner:

“1. That, the applicant's rights to the protection of the law enshrined in section 56(1) of the Constitution of Zimbabwe; to access information enshrined in sections 62(2) and 62(3) of the Constitution of Zimbabwe; to labour rights enshrined in sections 65(1) and 65(4) of the Constitution of Zimbabwe; to administrative justice enshrined in sections 68(1) and 68(2) of the Constitution of Zimbabwe; to a fair hearing enshrined in sections 69(2) and 69(3) of the Constitution of Zimbabwe; and to right to property enshrined in sections 71(3) and 71(4) of the Constitution of Zimbabwe were infringed by the Arbitrator's Interim Award dated 14 July 2010, the Arbitrator's Award dated 28 October 2010, the Labour Court's in its Judgment No. LC/H/87/14, the Supreme Court in its Judgment No. SC58-15, the Arbitrator's Interim Arbitration Award of 26 July 2017, the Labour Court's Judgment No. LC/H/279/2018, the Labour Court's Judgment No. LC/H/23/2019 and the Labour Court's Judgment No. LC/H/23/2021 in the matter of Erickson Mvududu v Agricultural and Rural Development Authority in that the hearings a quo, and the courts a quo, failed to appreciate that they were disabled to render such decisions.

ACCORDINGLY IT IS ORDERED:

2. That, the Arbitrator's Interim Award dated 14 July 2010, the Arbitrator's Award dated 28 October 2010, the Labour Court in its Judgment No. LC/H/87/14, the Supreme Court in its Judgment No. SC58-15, the Arbitrator's Interim Arbitration Award of 26 July 2017, the Labour Court's Judgment No. LC/H/279/2018, the Labour Court's Judgment No. LC/H/232/2019 and the Labour Court's Judgment No. LC/H/23/2021C be and are hereby declared null and void and of no force or effect and are set aside.

3. That, the dismissal of the applicant from employment by the first respondent's Board and the first respondent, on 19 May 2009, was unlawful, null and void and accordingly, it is hereby set aside.

4. That, the first respondent be and is hereby ordered to pay the applicant his arrear salary, allowances, and benefits with effect from 1 March 2009.

5. That, the respondents (if they oppose this application) jointly and severally pay the costs of this application the one paying the other to be absolved.”

The Labour Court had to decide whether or not the application for referral on the questions, as framed in the draft, had merit.

The application for referral was determined on the merits by the Labour Court.

The reasoning by the court, in such an application, is an important factor in assessing whether or not the court exercised its mind properly in coming to the conclusion that the application was frivolous or vexatious. It is therefore necessary to set out the reasoning in extenso.

The learned judge of the Labour Court stated:

“The issues that the applicant is seeking to raise are not directly relevant, or do not arise from the proceedings before the court. No constitutional infringement has been alleged in relation to the proceedings of the application for leave to appeal. The applicant seeks to impugn all decisions that have been handed down and all awards that have ever been handed down in his case, and they are not few considering that his dismissal was in May 2009, and, to date, the matter is still in the courts.

It has been to the Supreme Court, the then apex court of the land, and back.

The challenges that are now being raised as constitutional issues were decided up to the Supreme Court level and cannot now be revisited, and, if they must, it cannot be this Court that can revisit a decision of the Supreme Court.

The Labour Court has no such jurisdiction.

The issues also raised as constitutional issues must also be such that the Labour Court has jurisdiction over them. The Labour Court has no powers of reviewing process that has been through the courts up to Supreme Court. This court can also not even review decisions of other Judges of the Labour Court which were handed down by the other Judges. The court cannot even review actions taken by management at the respondent workplace unless it is referred through the proper channels.

For example, one of the alleged constitutional breach alleged is 'The most serious infringement of the applicant's fundamental rights is the fact that the applicant was unlawfully dismissed without any misconduct charges being laid against him, let alone, without following appropriate procedure in termination of the applicant's contract of employment….,.'

That this was a breach of the applicant's contract was settled up to the Supreme Court level and he was awarded damages for the unfair loss of his employment.

We cannot keep on going back to the breaches which have already been settled by the courts.

There must be an end to litigation; once the Supreme Court settled the dispute, that is the end of the road, save for the quantification issues.

The applicant alleges that all the awards, all the Labour Court judgments, and the Supreme Court judgments were disabled.

If there was anything wrong with the Supreme Court judgment, it cannot be brought back to the arbitrators and the Labour Court.

The issues raised, the manner in which they are being raised, seem to lend credence to the fact that the appellant is just being frivolous and vexatious.

In deciding whether the matter being raised is frivolous, the court has been referred to the case of Martin v Attorney–General and Anor 1993 (1) ZLR 153 (S).

In that case, the court stated that:

'In the context of section 24(2), the word 'frivolous' connotes, in its ordinary and natural meaning, the raising of a question marked by lack of seriousness, one inconsistent with logic and good sense, and clearly so groundless and devoid of merit that a prudent person could not possibly expect to obtain relief from it.

The word 'vexatious' in contradistinction, is used in the sense of the question being put forward for the purpose of causing annoyance to the opposing party, in the full appreciation that it cannot succeed; it is not raised bona fide, and, a referral would be to permit the opponent to be vexed under a form of a legal process that was baseless.'

It is this Court's considered view, that, in raising preliminary points which seek to challenge a decision of the Supreme Court before the arbitrator, and, again, before the Labour Court and also in seeking to reopen the dispute on the merits of the fairness of the decision when the Supreme Court has already pronounced itself on that issue, the applicant's conduct is indeed marked by a lack of seriousness and the conduct is inconsistent with logic and good sense.

He surely cannot expect to succeed in getting the arbitrator, and this court, to review a decision by the Supreme Court.

The applicant cannot seriously expect the arbitrator and the Labour Court to re-open the dispute at this stage.

The applicant must be taken to appreciate that he cannot succeed. He is merely being vexatious. In the result, the application is held to be frivolous and vexatious.”

A perusal of the draft order attached to the application for referral to the Constitutional Court for determination on the merits reveals that it is the same relief as sought in the main application sought to be filed herein.

When regard is had to the judgment of the court a quo, it is evident that the learned judge considered whether the application for referral was justified. The learned judge was alive to the requirement that the court exercises its mind on the question of whether the request for referral was frivolous or vexatious.

The court sought reliance from the dicta in Martin v Attorney General and Anor 1993 (1) ZLR 153 (S) as is evident from the judgment of the court a quo above.

What is at issue for consideration herein is whether or not a person is precluded from applying to this Court for redress, under section 85 of the Constitution, where an application for referral is refused by a subordinate court.

The question posed herein was discussed and decided in Martin v Attorney General and Anor 1993 (1) ZLR 153 (S) wherein the court stated at p156D-F:

“The fallacy of the contention is self-evident. Suppose that a judicial officer, solely due to animosity towards an accused, in bad faith and without any warrant, were to rule that the question raised by him was frivolous or vexatious and so order his remand in custody pending trial. Could it then be said that the accused was only entitled to approach the Supreme Court for relief under section 24(3)?

I think not.

Such action by the judicial officer concerned would, as mentioned before, itself constitute an infringement of the accused's entitlement to protection of the law. Moreover, and most importantly, since at the conclusion of any remand proceedings there is no right of appeal, no remedy under section 24(3) would be available to that accused.”

Section 24(3) of the former Constitution, which was under consideration in Martin v Attorney-General and Anor 1993 (1) ZLR 153 (S) provided as follows:

“Where, in any proceedings such as are mentioned in subsection (2), any such question as is therein mentioned is not referred to the Supreme Court, then, without prejudice to the right to raise that question on any appeal from the determination of the court in those proceedings, no application for the determination of that question shall lie to the Supreme Court under subsection (1).”

In construing the section, the court went on to state, at p158F–159A:

“On the other hand, if a judicial officer, after applying conscientious and objective thought to the question raised in the proceedings before him, were to express the opinion that it was frivolous or vexatious, the requesting party would, in consequence, have no locus standi to apply to the Supreme Court for redress under section 24(1).

He would only be entitled, if an appeal lay from the determination of the proceedings, to raise the question in reliance upon the provisions of section 24(3).

For these reasons, I am satisfied that the present application was correctly brought under section 24(1) of the Constitution. The order made by the magistrate was, in the circumstances, beyond his jurisdiction. This court must now place itself in the position it would have been had the magistrate, as he ought to have done, referred to it the question raised before him."

However, in a subsequent matter, S v Mbire 1997 (1) ZLR 579, the Supreme Court spelt out, that, it was only in rare and special situations, such as were found to exist in Martin v Attorney-General and Anor 1993 (1) ZLR 153 (S) that an application under section 24(1) would be entertained against a refusal for referral under section 24(2).

The applicant seeks leave for access to the Constitutional Court in terms of section 167(5) of the Constitution.

When regard is had to the dicta in Martin v Attorney General and Anor 1993 (1) ZLR 153 (S) it is clear, that, once a finding is made that the application for referral is frivolous or vexatious, the requesting party is precluded from approaching the court under section 85 of the Constitution for the determination of the question.

The position is different where the requesting party alleges that those proceedings, on their own, violated his right.

That is not the contention in casu.

The applicant intends to obtain an omnibus order for the setting aside of all proceedings between himself and the respondent.

What is evident is that the Labour Court has made a determination of the questions sought to be raised by the applicant and found no merit in the alleged constitutional violations. The court made a decision that there must be finality to litigation and that there is no legal basis, on the papers filed by the applicant, to substantiate an allegation of the violation of his rights. The court stated, that, there is no legal recourse open to the applicant to have all the processes surrounding his dispute with the third respondent to be reopened.

This is the relief he seeks before the Constitutional Court.

A pronouncement having been made on the issue, it is now res judicata. The judgment of the Labour Court is extant and remains so until and unless set aside. It has not been set aside and binds all parties thereto.

In view of the position of the Constitutional Court, as a specialised court, an applicant for direct access must show that it is in the interests of justice for access to be granted.

One of the factors for consideration by the Constitutional Court is whether or not the application has prospects of success.

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Limited and Another CC11-18, the court stated:

“The Court turns to determine the question whether the applicant has shown that direct access to it is in the interests of justice. Two factors have to be satisfied:

(i) The first is that the applicant must state facts or grounds, in the founding affidavit, the consideration of which would lead to the finding, that, it is in the interests of justice to have the constitutional matter placed before the Court directly, instead of it being heard and determined by a lower court with concurrent jurisdiction.

The second factor is that the applicant must set out, in the founding affidavit, facts or grounds that show that the main application has prospects of success should direct access be granted.”

The Constitutional Court has spelt out what an applicant is required to establish in order to gain access to its portal.

In casu, the applicant has failed to show that the application has prospects of success.

The Labour Court determined that the application was frivolous and vexatious. That judgment precludes him from making an application for direct access.

The prospects of success of the main application have been found wanting. Accordingly, unless and until the judgment is set aside, the parties hereto must adhere to it.

In the premises, the application is dismissed with no order as to costs.

CC13-20 : THABANI MPOFU vs ZIMBABWE ENERGY REGULATORY AUTHORITY and MINISTER OF ENERGY AND POWER DEVELOPMENT and GREEN FUELS (PVT) LTD
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWEJCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA JCC

In claiming locus standi under section 85(1) of the Constitution, a person should act in one capacity in approaching a court and not act in two or more capacities in one proceeding.

These sentiments were endorsed in the case of Nkomo v Minister of Local Government, Rural & Urban Development & Ors CC06-16: (1) ZLR 113 (CC)…,.

Although this Court has suggested that one must act in one capacity only under section 85(1) of the Constitution, where the circumstances so dictate, and one avers that he or she is acting in two or more capacities, that alone, it would appear to me, on the basis of a broad and generous approach to standing that section 85(1) of the Constitution portends, cannot be a basis for denying audience if at least one of the capacities does entitle the applicant to standing.

As observed in MAX du PLESSIS et al, Constitutional Litigation, Juta, 2013:

"A litigant may have standing both to act in the public interest…, and to act in the interests of persons who cannot act in their own name…,. For example, in Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) the (South African) Constitutional Court held, that, a group of non-governmental organisations had standing to interdict the President from granting presidential pardons without hearing victims on two grounds: in the public interest and in the interests of victims."...,.

Infringement of a Fundamental Right or Freedom

With regard to section 85(1)(a) of the Constitution, which premises locus standi on a personal interest in the matter, as with the other sub-paragraphs of section 85(1), it must be demonstrated that the infringement complained of by the affected party is that of a fundamental…,.

Section 47 of the Constitution reads:

"This chapter does not preclude the existence of other rights and freedoms that may be recognised or conferred by law, to the extent that they are consistent with this Constitution."…,.

The meaning that is readily apparent from the foregoing is that the fundamental rights provided for in Chapter 4 of the Constitution do not exclude other rights that are conferred by law. That, in itself, does not mean that the rights envisaged by section 47 of the Constitution are fundamental rights in terms of the Bill of Rights as contained in Chapter 4 of the Constitution.

Section 85(1) of the Constitution provides for the “…, fundamental right or freedom enshrined in this Chapter."

This reference relates to express rights as provided for in Chapter 4 of the Constitution.

It does not provide room for a "reading in" of new rights. At any rate, any “other rights and freedoms" must be such as are "recognized or conferred by law” and not inconsistent with the Constitution.

The Chapter 4 fundamental rights and freedoms are specific and specialised, clearly divided into derogable and non-derogable rights and are strictly protected from easy amendment by the requirement of a super majority plus a referendum - features that cannot easily be transferable to “inferred" new rights....,.

It is important to reiterate..., that, all locus standi situations envisaged in section 85(1) of the Constitution are in relation to the infringement of fundamental rights and freedoms in Chapter 4 of the Constitution...,.

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Zimbabwe

Constitutional Application re: Fundamental Rights iro Approach, Direct Access, Referral, Locus Standi and Jurisdiction

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE
Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE
Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE
Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

CC07-23 : RITA MBATHA vs VINCENT NCUBE and MESSENGER OF COURT
Ruled By: PATEL JCC

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD
Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

CC09-23 : TENDAI MASHAMANDA vs BARIADE INVESTMENTS (PVT) LTD and PUWAYI CHIUTSI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT and ELLIOT ROGERS and ATTORNEY GENERAL ZIMBABWE
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

CC09-23 : TENDAI MASHAMANDA vs BARIADE INVESTMENTS (PVT) LTD and PUWAYI CHIUTSI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT and ELLIOT ROGERS and ATTORNEY GENERAL ZIMBABWE
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

CC12-23 : DIVINE HOVE vs PARLIAMENT OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC14-23 : JEREMIAH BAMU vs DOUGLAS MWONZORA and MOVEMENT FOR DEMOCRATIC CHANGE–T and ZIMBABWE ELECTORAL COMMISSION and PRESIDENT OF THE REPUBLIC OF ZIMBABWE and MINISTER OF JUSTICE
Ruled By: GOWORA JCC

CC01-14 : KISIMUSI DHLAMINI and GANDI MUDZINGWA and CHINOTO ZULU and ANDRISON MANYERE and ZACHARIAH NKOMO and REGIS MUJEYE and MAPFUMO GARUTSA vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

CC09-15 : DOUGLAS MWONZORA and OTHERS vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and MAVANGIRA AJCC

CC12-14 : HELEN MATIASHE vs HONOURABLE MAGISTRATE MAHWE N.O. and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and PATEL JA

CC06-16 : SAMUEL NKOMO vs MINISTER OF LOCAL GOVERNMENT, RURAL & URBAN DEVELOPMENT and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and GOVERNMENT OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

CC06-16 : SAMUEL NKOMO vs MINISTER OF LOCAL GOVERNMENT, RURAL & URBAN DEVELOPMENT and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and GOVERNMENT OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

CC10-21 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY (ARDA) and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

CC13-20 : THABANI MPOFU vs ZIMBABWE ENERGY REGULATORY AUTHORITY and MINISTER OF ENERGY AND POWER DEVELOPMENT and GREEN FUELS (PVT) LTD
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWEJCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA JCC

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Law Portal Zimbabwe

Constitutional Application re: Fundamental Rights iro Approach, Direct Access, Referral, Locus Standi and Jurisdiction

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

CC07-23 : RITA MBATHA vs VINCENT NCUBE and MESSENGER OF COURT Ruled By: PATEL JCC

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

CC09-23 : TENDAI MASHAMANDA vs BARIADE INVESTMENTS (PVT) LTD and PUWAYI CHIUTSI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT and ELLIOT ROGERS and ATTORNEY GENERAL ZIMBABWE Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

CC09-23 : TENDAI MASHAMANDA vs BARIADE INVESTMENTS (PVT) LTD and PUWAYI CHIUTSI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT and ELLIOT ROGERS and ATTORNEY GENERAL ZIMBABWE Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

CC12-23 : DIVINE HOVE vs PARLIAMENT OF ZIMBABWE Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC14-23 : JEREMIAH BAMU vs DOUGLAS MWONZORA and MOVEMENT FOR DEMOCRATIC CHANGE–T and ZIMBABWE ELECTORAL COMMISSION and PRESIDENT OF THE REPUBLIC OF ZIMBABWE and MINISTER OF JUSTICE Ruled By: GOWORA JCC

CC01-14 : KISIMUSI DHLAMINI and GANDI MUDZINGWA and CHINOTO ZULU and ANDRISON MANYERE and ZACHARIAH NKOMO and REGIS MUJEYE and MAPFUMO GARUTSA vs THE STATE Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

CC09-15 : DOUGLAS MWONZORA and OTHERS vs THE STATE Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and MAVANGIRA AJCC

CC12-14 : HELEN MATIASHE vs HONOURABLE MAGISTRATE MAHWE N.O. and ATTORNEY GENERAL OF ZIMBABWE Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and PATEL JA

CC06-16 : SAMUEL NKOMO vs MINISTER OF LOCAL GOVERNMENT, RURAL & URBAN DEVELOPMENT and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and GOVERNMENT OF ZIMBABWE Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

CC06-16 : SAMUEL NKOMO vs MINISTER OF LOCAL GOVERNMENT, RURAL & URBAN DEVELOPMENT and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and GOVERNMENT OF ZIMBABWE Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

CC10-21 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY (ARDA) and ATTORNEY GENERAL OF ZIMBABWE Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

CC13-20 : THABANI MPOFU vs ZIMBABWE ENERGY REGULATORY AUTHORITY and MINISTER OF ENERGY AND POWER DEVELOPMENT and GREEN FUELS (PVT) LTD Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWEJCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA JCC

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Zimbabwe

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE
Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE
Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE
Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

CC07-23 : RITA MBATHA vs VINCENT NCUBE and MESSENGER OF COURT
Ruled By: PATEL JCC

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD
Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

CC09-23 : TENDAI MASHAMANDA vs BARIADE INVESTMENTS (PVT) LTD and PUWAYI CHIUTSI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT and ELLIOT ROGERS and ATTORNEY GENERAL ZIMBABWE
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

CC09-23 : TENDAI MASHAMANDA vs BARIADE INVESTMENTS (PVT) LTD and PUWAYI CHIUTSI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT and ELLIOT ROGERS and ATTORNEY GENERAL ZIMBABWE
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

CC12-23 : DIVINE HOVE vs PARLIAMENT OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC14-23 : JEREMIAH BAMU vs DOUGLAS MWONZORA and MOVEMENT FOR DEMOCRATIC CHANGE–T and ZIMBABWE ELECTORAL COMMISSION and PRESIDENT OF THE REPUBLIC OF ZIMBABWE and MINISTER OF JUSTICE
Ruled By: GOWORA JCC

CC01-14 : KISIMUSI DHLAMINI and GANDI MUDZINGWA and CHINOTO ZULU and ANDRISON MANYERE and ZACHARIAH NKOMO and REGIS MUJEYE and MAPFUMO GARUTSA vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

CC09-15 : DOUGLAS MWONZORA and OTHERS vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and MAVANGIRA AJCC

CC12-14 : HELEN MATIASHE vs HONOURABLE MAGISTRATE MAHWE N.O. and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and PATEL JA

CC06-16 : SAMUEL NKOMO vs MINISTER OF LOCAL GOVERNMENT, RURAL & URBAN DEVELOPMENT and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and GOVERNMENT OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

CC06-16 : SAMUEL NKOMO vs MINISTER OF LOCAL GOVERNMENT, RURAL & URBAN DEVELOPMENT and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and GOVERNMENT OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

CC10-21 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY (ARDA) and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

CC13-20 : THABANI MPOFU vs ZIMBABWE ENERGY REGULATORY AUTHORITY and MINISTER OF ENERGY AND POWER DEVELOPMENT and GREEN FUELS (PVT) LTD
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWEJCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA JCC