IN
CHAMBERS
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
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. CCZ 55/22 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) 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),
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 Ms Sunday,
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.
Ms
Sunday
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 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 CCZ 5/22; K.M Auctions (Pvt) Ltd v Samuel & Anor SC
15/12 at p3;
Kodzwa
v Secretary for Health & Anor 1999 (1) ZLR 313 (S) at 315 B-E;
Terera v Lock &
Others
SC
93/21; 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
CCZ
11/21,
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
CCZ
7/21 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
CCZ
7/22 at page 13, para.
32,
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.”
(my
emphasis)
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
utilised
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)
at
118-119;
Mupungu
v
Minister
of
Justice,
Legal
and
Parliamentary
Affairs
and
Others CCZ
7/21.
The
Interests
of
Justice
In
this matter, the decisive factor is whether or not the interests of
justice favour the
grant
of
condonation
sought
by
the
applicant.
The
parties
have
been
engaged
in
an
interminable
legal
wrangle
which
shows
no
signs
of
abating
when
taking
into
account
the
pending
spoliation
proceedings
in
the
High
Court.
The
applicant's
eviction
from
the
first
respondent's
property
before
the
set
down
of
this
hearing
has a direct bearing on the
present
proceedings.
The
matter has now become a
classically
academic
dispute
with
no
practical
impact
or
effect
flowing
from
any
order
that
may
be
handed down by this Court in favour of the applicant's instant or
prospective applications,
viz.
for
direct access and for substantive relief in the main matter.
Her
lawful eviction granted
in
terms
of
the
order
under
Case
No.
MC39520/16
means
that
any
declaratory
and
other
relief
granted
by this Court upsetting the judgments of the Supreme Court become
abstract and
meaningless
–
nothing
more
than
bruta
fulmina
–
by
reason
of
the
hard
fact
that
she
is
no
longer
in
occupation
of
the
first
respondent's
property.
Furthermore,
the applicant's insistence that this is an important matter that
ought to
proceed
nonetheless before this forum is undermined by the pending
proceedings in the High
Court.
As
was
put
to
the
applicant
at
the
hearing,
the
fitting
course
of
action
would
be
to
pursue
the
pending litigation for restoration of possession in that court.
It
would clearly not be in the
interests
of
justice
to
grant
the
applicant
condonation
before
this
Court
in
an
entirely
academic
dispute.
The
sole reason for entertaining the applicant's case thus far is to
ensure finality to the
present
and intended proceedings before this Court.
In
declining the instant application for
condonation,
I am fortified by the case of Khupe
& Anor v Parliament of Zimbabwe & Ors
CCZ
20/19,
wherein
MALABA
CJ
emphasised
the
following
regarding
mootness:
“The
question of mootness is an important issue that the Court must take
into account
when
faced
with
a
dispute
between
parties.
It
is
incumbent
upon
the
Court
to
determine
whether
an
application
before
it
still
presents
a
live
dispute
as
between
the
parties.
The
question
of
mootness
of
a
dispute
has
featured
repeatedly
in
this
and
other
jurisdictions.
The
position of the law is that a court hearing a matter will not readily
accept an
invitation
to adjudicate on issues which are of 'such a nature that the
decision sought
will
have
no
practical effect or result.'”
See
also
Movement
for
Democratic
Change
&
Ors
v
Mashavira
&
Ors
SC56/20.
Costs
and Disposition
Both
parties sought an order for costs against each other despite the
general refrain
against
such an order in constitutional matters.
Ms
Sunday
submitted
that the applicant was in
abuse
of court process through multiple baseless actions in which she has
sued the first
respondent
in
the
courts.
However,
I
am
disinclined
to
award
costs
notwithstanding
the
notable
abuse
of court process by the applicant. This is largely based on her
status as a self–actress in
this
matter.
In
the result, it is ordered that the application be and is hereby
dismissed with no order
as
to
costs.
Legal
Aid
Directorate,
first
respondent's
legal
practitioners
