In the alternative, counsel for the appellant submitted, that, like should be treated alike otherwise it would be unconscionable for the respondent to alter its opinion merely for the sake of extracting as much income tax from the appellant as it did with respect to customs duty on the same facts and circumstances.

He submitted, that, by making the Value Ruling, the respondent, in essence, determined, as contemplated by section 106(2) of the Customs and Excise Act, that the two related parties acted at arm's length, a consideration in convergence with the requirements of section 24 of the Income Tax Act.

He argued, that, the juxtaposition of a different and contradictory opinion on the purchase price, under the Income Tax Act, to the transaction value under the Customs and Excise Act of the self-same imported vehicles, was both illogical and unlawful.

The word opinion is not defined in any of the Taxes Acts. It has been judicially defined in a number of cases:

In Judes v District Registrar of Mining Rights, Krugersdorp 1907 TS 1046…, INNES CJ equated a decision, in the absence of a qualification, with a final determination.

Both Herbert Porter & Co Ltd and Another v Johannesburg Stock Exchange 1974 (4) SA 781 (W)…, and Knop v Johannesburg City Council 1995 (2) SA 1 (A)…, defined decision as “the final and definite result of examining a question” and “adjudication in the juristic sense, i.e. a final and definite result in consequence of examining a question”, respectively.

These definitions were adopted in Media Workers Association of South Africa & Ors v Press Corporation of South Africa Ltd (Preskor) 1992 (4) SA 791 (A)…,. This was a labour matter in which the relevant statutory provision stipulated that “an assessor shall be a person, who, in the opinion of the Chairman of the Court, has experience in the administration of justice or skill in any matter which may be considered by the Court.”

By reference to The Shorter Oxford Dictionary, it was held, at 796E, that, an opinion was a matter of speculation which could not be proved by any available evidence to be right or wrong.

In the local case of R v Foster 1962 (1) SA 280 (SR)…, BEADLE CJ held that:

“Opinion means something different from 'intention'…,. If the long and complex definition of 'opinion' in the Shorter Oxford Dictionary is examined, it will be seen that the meaning of 'opinion' includes only such things as 'a judgment' or 'a belief of something'. It does not include merely an intention.”

However, in R v Sibanda & Ors 1965 RLR 363…, an opinion of a court was equated with a judgment derived from objective facts and not a belief.

In my view, the publication and contents of the Value Ruling No.15 of 2007, and the accompanying correspondence, demonstrated that the Commissioner-General was alive to the powers vested in him generally by Part X, and, in particular, by section 106 and 113 of the Customs and Excise Act.

It seems to me, that, the provisions in Part X delineate almost all the possible ingredients that constitute a transaction value for the purposes of computing the duty value of an imported item under the Customs and Excise Act.

In summary, the ruling was that the sum payable to the intermediary was the value for duty purposes and that amount was religiously treated by the appellant as the purchase price of the motor vehicles in all its tax returns from the time it took effect.

And rightly so, for those ingredients, in my view, are similar to the considerations which must necessarily constitute the purchase price of such an imported item for Income Tax purposes.

In ruling on the transaction value for duty purposes, the Commissioner General made a final and definitive determination amounting to an “adjudication in the juristic sense, i.e. a final and definite result in consequence of examining a question” or a 'judgment' as indicated in Knop v Johannesburg City Council 1995 (2) SA 1 (A) and R v Foster 1962 (1) SA 280 (SR), respectively.

That final and definite determination was that the relationship between the appellant and the intermediary did not influence the price actually paid for the goods concerned.

The opinion of the Commissioner was that the parties acted at arm's length in setting the transaction value.

The finding was based on the objective assessment of the information provided to the Commissioner, which information would, more or less, be used to determine the purchase price of the imported vehicles.

The introduction of a different statute would not change the value of the motor vehicles nor the finding that the parties had an arm's length relationship, especially in view of the respondent's refusal to refund the duty, surtax, and VAT paid on the higher transactional value.

Clearly, the appellant cannot approbate and reprobate in respect of the same motor vehicles simply because the imposts are levied under two different statutes.

Contrary to the submission by counsel for the respondent, in paragraph 11.2 of his written heads of argument, I am satisfied, that, the assessment and payment of import duties and taxes based on the transaction value of these vehicles, which was objectively ascertained by the respondent, is binding on the respondent.

The appellant has shown that it knows of no other means and the respondent has not discharged the evidentiary onus that shifted to it of showing how the purchase price required for the computation of taxable income on these vehicles could have been arrived at other than in the same way that was used to ascertain the transaction value.

This is an application for direct access to the Constitutional Court made in terms of section 167(5)(a) of the Constitution of Zimbabwe. The allegation is that the conduct of the respondents violated the applicant's fundamental rights as enshrined in sections 69(1) and 70(1)(d),(e) and (f) of the Constitution.

The brief facts of the matter are as follows:

In 2017, the applicant was arraigned before the magistrates court at Harare facing charges of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Three separate trials were held before the first, second, and third respondents and he was convicted and sentenced to three separate terms of imprisonment.

It is the applicant's allegation, that, during the conduct of the trial proceedings, the first and second respondents violated his right to legal representation because they did not advise him of that right at the commencement of the trial.

This is alleged to be a violation of section 70(1)(d), (e) and (f) of the Constitution.

In the same respect, it is also alleged, that, the first and second respondents “failed to take heed to the laws governing the commencement of criminal trials” and therefore violated section 163A(1) and (2) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP&E Act).

It is further alleged, that, such conduct infringed the applicant's right to a fair trial as entrenched in section 69(1) of the Constitution.

As regards the third respondent, it is averred, that, the magistrate did advise the applicant of his right to legal representation in terms of section 191 of the Criminal Procedure and Evidence Act, but, then failed to make an enquiry as to whether or not the applicant had understood those provisions.

This is said to have led to unfair proceedings in violation of sections 69(1) and 70(1)(d),(e) and (f) of the Constitution.

Allegations are also made against the fourth respondent in that it failed to assist the applicant in protecting his fundamental rights as aforementioned.

Consequent to these alleged violations, the applicant has approached this Court for relief.

The application is opposed by the fourth respondent.

It contends, that, the applicant has not demonstrated, that, it is in the interests of justice that he be granted direct access to the court. It is also argued, that, the mere reference to constitutional provisions does not mean that a constitutional matter has been raised.

It is important to note, that, the fourth respondent concedes that the proceedings before the first, second, and third respondents were irregular, but, nevertheless, avers that competent relief could have been granted by the High Court or the Supreme Court thus obviating the need to approach the court directly.

In fact, it is alleged that the applicant has since approached the High Court for relief under Case No. HC7066/20.

It is prayed that the application be dismissed as it is without merit....,.

In casu, the circumstances of the case demand, that, an analysis of whether the matter is properly before the Court ought to be made before any enquiry into the merits.

In his founding affidavit, the applicant purports to bring the present application before the court in terms of section 167(5)(a) of the Constitution.

This is clearly irregular as such an application cannot be brought before the court in terms of that provision.

Section 167(5)a) of the Constitution provides as follows:

“(5) Rules of the Constitutional Court must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court —

(a) To bring a constitutional matter directly to the Constitutional Court;”

The above provision clearly makes reference to the Rules of the Constitutional Court in terms of which a litigant must approach the court. Section 167(5)(a) of the Constitution cannot be read as a standalone provision independent of other constitutional provisions and the Rules that it mentions.

As pointed out by GWAUNZA JCC in Prosecutor General, Zimbabwe v Telecel Zimbabwe (Pvt) Ltd 2015 (2) ZLR 422 (CC) at 425H:

“…,. Section 167 does not elaborate as to who, on what conditions, or how a party may approach the court for it to exercise the jurisdiction conferred upon it by that provision.”

The Court went further to explain the true status of the provision, at 426A:

“In order to give full effect to section 167(1), in relation to any constitutional matter sought to be brought before the court, the provision must be read in conjunction with the various provisions that do confer a right to approach the Constitutional Court, directly or indirectly, through another process.”

Whilst the above remarks were made in relation to section 167(1) of the Constitution, they apply with equal force to the circumstances in casu.

Section 167(5)(a) of the Constitution, in terms of which the applicant seeks to approach this Court, must be read together with other provisions of the Constitution and the Rules which were enacted to give effect to that provision.

In that regard, section 85(1) of the Constitution and Rule 21 of the Constitutional Court Rules are pertinent.

Section 85(1) of the Constitution provides as follows:

“85(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.”

Having regard to the above provision, it is apparent that the applicant ought to have approached the Court in terms of section 85(1) of the Constitution, claiming the vindication of his fundamental rights.

Section 167(5)(a) of the Constitution, in se, does not confer upon anyone the right to approach the Constitutional Court directly - even where there is a constitutional matter for determination.

This is an application in terms of section 85(1)(a) of the Constitution of Zimbabwe.

The appellants allege that their constitutional rights, as enshrined in sections 70(1(b), 70(1)(d) and 70(1)(c), have been violated through the manner in which criminal proceedings against them were conducted in the Magistrates Court sitting at Chivhu.

They seek an order that the proceedings be quashed and a trial de novo ordered before a different magistrate.

The respondents raise a point in limine to the effect, that, the applicants are not properly before this Court.

They contend, that, the applicants should have approached this Court through a referral of the matter to it by the Magistrates Court in terms of section 175(4) of the Constitution. This is in view of the fact that the constitutional issue upon which the application is premised arose during the course of proceedings in the Magistrates Court.

It is not in dispute, that, the applicants took the opportunity availed by a postponement, granted by consent in the Magistrates Court proceedings, to approach this Court directly.

Section 175(4) of the Constitution reads as follows:

“Powers of courts in Constitutional Matters

“175(4) If a constitutional matter arises in any proceedings before a court, the person presiding over that court may, and, if so requested by any party to the proceedings, must, refer the matter to the Constitutional Court unless he or she considers the request merely frivolous or vexatious.”

It is the respondents contention, in light of this provision, that, the applicants failure to approach this Court in terms of section 175(4) of the Constitution was 'fatal' to the application.

Section 85(1) of the Constitution 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 interest;

(b)…,.

(c)…,.

(d)…,.

(e)…,.
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.”…,.

The word “court” is not defined in section 332 of the Constitution, but, in the context in which it is used, appears to include the Constitutional Court.

It seems to me therefore, that, on a strict, literal reading of section 85(1)(a) of the Constitution, it could be argued, as the appellants briefly do in casu, that, beyond what is expressly stated therein, the wording does not place any restrictions on the type of person who may approach the Constitutional Court directly.

Firstly, the section is not prefixed with the words 'subject to…; or 'save as otherwise provided in terms of…,.'

These phrases are normally used in legislative drafting parlance to indicate that the provision in question does not have unfettered application but is to be applied only to the extent that it does not contradict the specific other provisions mentioned.

This is clearly not the case in casu.

Secondly, the applicants are clearly acting in their own interest, and are alleging a violation of their fundamental rights.

Thirdly, and more specifically, it could be argued, that, section 85(1) of the Constitution does not expressly exclude a direct approach to this Court where the violations alleged were perpetrated in the course of proceedings in a lower court.

This situation is to be contrasted with some provisions of section 24 of Zimbabwe's old Constitution, which effectively are the precursor to some parts of both sections 85 and 175 of the current Constitution.

Section 24 read as follows in relevant parts:

“24. Enforcement of protective provisions

(1) If any person alleges that the Declaration of Rights has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may, subject to the provision of subsection (3), apply to the Supreme Court for redress.

(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.

(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 or 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 interpreting section 24(3) and its effect, a number of authorities ruled, that, it rendered the provisions of section 24(2) mandatory. In other words, any constitutional issue that arose during proceedings in a lower court, had to be referred to the Supreme Court (sitting as a Constitutional Court) in terms of section 24(2).

Section 175(4) of the current Constitution is an exact replica of the old section 24(2).

It was, for instance, held by MALABA JA…, in Tsvangirai v Mugabe and Anor 2006 (1) ZLR 148 (S) as follows;

“It is the duty of the party who wants a question as to the contravention of the Declaration of Rights arising in the proceedings in the High Court, or in a court subordinate to it, referred to the Supreme Court for determination, to ensure compliance with the provisions of section 24(2). The requirement to comply with the procedure prescribed thereunder is made mandatory by the provision of section 24(3).”

In the earlier case of Jesse v Attorney General 1999 (1) ZLR 121 (S), GUBBAY CJ…, had similarly stated as follows;

“Put differently, the question is whether an applicant may, during the course of proceedings in the High Court, as in any court subordinate to it, simply ignore the provisions of section 24(2), and utilise the procedure laid down in section 24(1). I entertain not the slightest doubt that the resort by the applicant to section 24(1) of the Constitution was impermissible.”

GUBBAY CJ went on to dismiss the application before him, for contravening section 24(3) of the Constitution.

It is thus evident, that, the application in casu would have been declared impermissible, and/or been dismissed, had it been brought in terms of the old section 24(1).

It should be noted, however, that, in the case of Martin v A-G & Anor (1993) (1) ZLR 153 (S) it was held, that, an exception to this general rule would arise in the situation where a lower court denied an application for referral in terms of section 24(2) of the old Constitution, for reasons other than those permitted under section 24.

See also Mukoko v Commissioner General of Police & Others 2009 (1) ZLR 21 (S).

In that case, the refusal to refer the matter to the Supreme Court was found to have been premised on a misunderstanding, by the Magistrates Court, of the meaning of the phrase 'frivolous or vexatious'. The court held, that, in such circumstances, the unsuccessful applicant was entitled to approach the Supreme Court directly in terms of section 24(1).

While this is not the situation that the case at hand is concerned with, it is nevertheless pertinent to note, that, an applicant, such as the one in Martin v A-G & Anor (1993) (1) ZLR 153 (S), would have had to initially make his application for referral to a lower court.

The last argument that could conceivably have been raised against a finding that the application in casu should suffer the same fate is that, despite subsection 175(4) repeating word for word, section 24(2) of the old Constitution, the section that followed it, that is section 24(3), was not similarly imported into section 175 of the current Constitution.

This is the subsection that the authorities cited above interpreted as outlawing a direct approach to the Supreme Court. In addition to this, reference to the same subsection, in the old section 24(1) also failed to find its way into the new Constitution.

The sum total of all this, it appears to me, could be interpreted as evincing an intention, by the Legislature, to remove completely any “bar” that an applicant in terms of section 24(1) might have confronted, arising from the fact that the constitutional issue in point arose during proceedings in a lower court.

It could further be interpreted as creating the impression, that, the options for redress that were open to an applicant envisaged in the old sections 24(2) (now section 175(4)) and 24(3) have been widened.

The critical questions that then arise, against this background, are:

1. Has the absence of restrictive provisions in both section 85 and section 175(4) (particularly the former), opened the door very widely, and given unfettered, direct access to the Constitutional Court, to any person who claims an existing, current, or impending violation of their constitutionally guaranteed fundamental rights?; and

2. Was this the intention of the Legistature?

These questions, in my view, can only be answered on a proper consideration of relevant rules governing the interpretation of statutes, generally, and of the Constitution in particular.

In this respect, it is pertinent to note, that, a Constitution is itself a statute of Parliament. Therefore, any rules of interpretation that are regarded as having particular relevance in relation to constitutional interpretation, can only be additional to the general rules governing the interpretation of statutes.

The starting point, in relation to the interpretation of statutes generally would be what is termed 'the golden rule' of statutory interpretation. This rule is authoritatively stated thus in the case of Coopers and Lybrand & Others v Bryant 1995 (3) SA 761 (A)…,.;

“According to the 'golden rule' of interpretation, the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity or some repugnancy or inconsistency with the rest of the instrument.”…,.

In his book 'Principles of Legal Interpretation - Statutes, Contracts and Wills' 1st Ed. At page 57, E A KELLAWAY echoes this statement as follows:

“The dominating Roman-Dutch law principle is that an interpretation which creates an absurdity is not acceptable (that is 'interpretatio quae parit absurdum non est admittenda): see, among other authorities, Exparte Fourie 1962 (3) SA 614 (O); S v Nyathi 1978 (2) SA 20 (B); and Canca v Mount Free Municipality 1984 (2) SA 870 (TK) 833).”

The learned author, at page 62, further states:

“Even if a (South African) court comes to the conclusion that the language is clear and unambiguous, it is entitled to reject the purely literal meaning if it is apparent from the anomalies which flow therefrom that the literal meaning could not have been intended by the legislature.”…,.

Apposite to the circumstances of this case, the learned author, after considering a number of authorities, makes the following remarks at page 61:

“While it is not permissible to speculate as to the purpose of an enactment, the legislative purpose may be sought from the subject matter of the Act, the enacting clauses in the whole enactment, the state of the law before the enactment was passed, and the surrounding circumstances: see Hunter v R 1907 TS 910; Dadoo Ltd v Krugersdorp Municipal Council 1920 AD 530;”…,.

And, lastly, at page 293, in reference to the maxim 'in pari materia' the learned author states:

“According to Roman-Dutch law, a later enactment not clear as to its meaning, which has analogous provisions with regard to, or clauses corresponding with, an earlier enactment, and particularly where the later enactment deals with the same subject matter, should, where feasible, be so interpreted that both provisions cohere, so that the contents of the earlier one can throw light on the later, unclear provision: see, among other authorities, Brink v Alfred McAlpine & Sons South Coast Regional Rent Board 1971 (1) SA 741 (A); Durban City Council v Shell and BP SA Petroleum Refineries (Pty) Ltd 1971 (4) SA 466.”

The principles set out in the dicta cited above can aptly and instructively be summarized as follows:

(i) The Legislature is presumed not to intend an absurdity, ambiguity, or repugnancy to arise out of the grammatical and ordinary meaning of the words that it uses in an enactment.

(ii) Therefore, in order to ascertain the true purpose and intent of the Legislature, regard is to be had, not only to the literal meaning of the words, but also to their practical effect.

(iii) In this respect -

(a) The words in question must be capable of an interpretation that is 'consistent' with the rest of the instrument in which the words appear;

(b) The state of the law in place before the enactment in question is a useful aid in ascertaining the legislative purpose and intention; and

(c) Where an earlier and later enactment (or provision) deals with the same subject matter, then, in the case of uncertainty, the two should be interpreted in such a way that there is mutual consistency.

Turning now to the additional considerations that are particular to the interpretation of the Constitution, I find the following dictum from the Namibian case of Minister of Defence, Namibia v Mwandinghi 1992 (2) SA 355 (Nm) to be both apposite and instructive;

See also, among others, Rattigan v Chief Immigration Officer & Others 1994 (2) ZLR 54 (S); Capital Radio (Pvt) Ltd v Broadcasting Authority of Zimbabwe 2003 (2) ZLR 236.

“…, The whole tenor of Chapter 111 (of its Constitution) and the influence upon it of international human rights instruments from which many of its provisions were derived, call for a generous, broad, and purposive interpretation that avoids the austerity of tabulated legalism.”…,.

These remarks are echoed in the following summation by the learned author EA KELLAWAY 'Principles of Legal Interpretation - Statutes, Contracts and Wills' 1st Ed…,.;

“The principle of interpretation of a state's Constitution, incorporating a bill of rights, may be stated thus:

An interpreter should follow the submitted triple synthesis of literalism, intentionalism, and purposiveness principle, as is done in the interpretation of any other statute….,.”

Thus, while a Constitution is to be interpreted in accordance with the rules relating to statutes, generally, the authorities suggest, that, a court called upon to interpret such a Constitution should give a generous and purposive construction to its provisions, particularly the entrenched fundamental rights and freedoms.

It appears to me, that, in this process, the purpose of the provision in question is to be given particular attention.

When all this is applied to the circumstances of this case, there is, in my view, no gainsaying the fact, that, a literal and grammatical meaning ascribed to section 85(1) would be inconsistent with section 175(4) of the Constitution.

This is to the extent, that, such meaning would give room to litigants, in proceedings underway in a lower court, to abandon such proceedings midstream, and, without any ceremony, in order to approach the Constitutional Court directly in terms of that section.

Such a meaning would thus introduce an absurdity and possible chaos to a process, that, in terms of the more expansive section 24 of the old Constitution, was free of such anomalies.

It is evident, that, the purpose of the old section 24, and, in particular, subsections (1) (2) and (3), was to inject order and certainty into the process by which constitutional issues arising during proceedings before the lower courts, were referred to the Constitutional Court order in the sense, that, the lower court had the opportunity to call and hear evidence on, and consider, the issue so as to determine whether it is not frivolous or vexatious.

Only then did the court refer the issue to the Constitutional Court.

Through this process, the Constitutional Court was shielded from a situation where frivolous and undeserving cases might have been directly brought to it.

There was certainty in the process in that the lower court, where it referred the matter, was fully informed as to both the reason for, and the effect of, such referral. The effect would be a formal deferment of the proceedings in that court, pending a Constitutional Court determination of the issues referred to it. More importantly, the risk of parallel proceedings being pursued in the Constitutional and the lower courts, on different aspects of the same case, but based on the same facts, was obviated.

It should be noted, that, the case at hand is an example of the absurdity that may arise from a strict, literal construction of section 85(1) of the Constitution.

The proceedings in the Magistrates Court were postponed by consent of the parties. The next thing that happened was a direct application to this Court, in which aspects of those proceedings are being impugned.

There is nothing on the record to suggest that the Magistrates Court was made aware of this development, or, if so, through what procedure and to what effect.

It may therefore be safe to assume, that, the lower court is still in the dark in this regard.

Further to this, it appears from the facts of the case, that, evidence should have been led in the lower court to enable the magistrate to determine whether or not the case merited a referral to the Constitutional Court.

The end result is that the latter court is seized with a matter that might not only have required viva voce evidence to be led, but may, for all intents and purposes, have been ruled frivolous or vexatious by the magistrate.

This Court is not able to call and hear viva voce evidence from the parties, and would thus be handicapped in terms of properly determining the matter.

I therefore entertain no doubt, that, the certainty order referred to above would be completely eroded were the courts to operate on the basis of a literal and grammatical interpretation of section 85(1) of the Constitution.

This circumstance is not only highly undesirable, it would also constitute an affront to the time honoured common law principle, that, a superior court should be slow to intervene in ongoing proceedings in an inferior court - except in exceptional circumstances.

This principle is persuasively articulated as follows in the case of Wahlhaus v Additional Magistrate, Johannesburg 1959 (3) SA 113 (A):

“…,. A superior court would be slow to exercise any power upon the unterminated course of criminal proceedings in a court below, but, would do so in rare cases where grave injustice might otherwise result or where justice might not, by other means, be attained.”

It seems to me, that, the ratio in the cases of Tsvangirai v Mugabe and Anor 2006 (1) ZLR 148 (S) and Jesse v Attorney General 1999 (1) ZLR 121 (S)…, was a re-affirmation of this principle, and that it found fortification in section 24(3) of the old Constitution.

Despite this 'fortification' not having found its way into the new Constitution, I am satisfied that the basic principle remains.

It is, in any case, trite that, a statute should, where possible, be construed in conformity with the common law rather than against it, except where the statute is clearly intended to alter the common law: see Johannesburg Municipality v Cohen's Trustees 1909 TS 811.

I do not find anything in the wording of section 85(1(a) of the Constitution that could be said to evince an intention to oust common law on the issue in point.

Sections 85(1) and 175(4) of the current Constitution and section 24 of the old Constitution, all deal with the same subject matter; that is, the methods by which matters may be brought to the Constitutional Court.

To that extent, I am satisfied no basis exists for interpreting the later provisions in such a way that they do not 'cohere' with the earlier provisions.

In other words, the provisions of the old section 24 should be taken as 'throwing light' on the provisions of section 85(1)(a) and 175(4) of the current Constitution.

I find, when all is told, that, the above expose and analysis of the law and authorities on statutory interpretation clearly favour a finding, in casu, that it was not the intention of the Legislature to oust a procedural regime that ensured order and certainty in the administration of justice in the courts, and to introduce in its place, one that would result in absurdity, disorder, and ambiguity.

Clearly, the anomalies that would flow from a literal meaning of section 85(1)(a) could not have been intended by the Legislature.

Consequently, and, except in circumstances akin to those in Martin v A-G & Anor 1993 (1) ZLR 153 (S), any constitutional issue that arises during proceedings in a lower court ought to and must be brought to this court only upon referral in terms of section 175(4) of the Constitution.

It follows from this, that, the instant application is not properly before this Court.

In the final result, I find that the point in limine raised by the respondents has merit and ought to be upheld.

In the result, it is ordered as follows:

1. The point in limine raised by the respondents be and is hereby upheld.

2. The application is struck off the roll.

3. There shall be no order as to costs.

This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by the President as unconstitutional. This it allegedly did in the first of its two parts.

We summarise the facts giving rise to this application from the two applications that were filed in the High Court under case numbers HC2128/21 and HC2166/21, respectively. The facts are not complex.

The facts of this application coalesce, and relevantly so, around 15 May 2021 when the Chief Justice, Judge Malaba, reached the age of seventy. A few days before that date, on 7 May 2021 to be precise, the Constitution of Zimbabwe Amendment (No.2) Act (No.2 of 2021) came into force.

Among other provisions, it amended section 186 of the Constitution to provide for the tenure of judges in the following terms:

“(1) The Chief Justice and the Deputy Chief Justice hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire unless before they attain that age they elect to continue in office for an additional five years;

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(2) Judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen years; but

(a) They must retire earlier if they reach the age of seventy unless, before they attain that age, they elect to continue in office for an additional five years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(b) After the completion of their term, they may be appointed as judges of the Supreme Court or the High Court, at their option, if they are eligible for such appointment.

(3) Judges of the Supreme Court hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire, unless, before they attain that age, they elect to continue in office for an additional five years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(4) Notwithstanding subsection (7) of section 328, the provisions of subsections (1), (2) and (3) of this section shall apply to the continuation in office of the Chief Justice, the Deputy Chief Justice, Judges of the Constitutional Court and Judges of the Supreme Court.”

Acting in accordance with the provisions of section 186 of the Constitution, as amended, the Chief Justice exercised the option to extend his tenure of office beyond the age of seventy for an additional five years.

By letter dated 11 May 2021, the seventh respondent, the President, accepted a medical report as to the mental and physical fitness of the Chief justice to continue in office.

The third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Mutanda) respondents formed the firm view, that, the seventh respondent (the President), by accepting the medical report, that the Chief Justice was mentally and physically fit to so continue in office, had subverted the correct constitutional position.

They filed the two applications in the High Court that we have detailed above, challenging the continuation in office of the Chief Justice for an additional five years beyond 15 May 2021.

In his application, the third respondent (Musa Kika), in addition to the Chief Justice, cited as respondents all the judges of the Supreme Court and some judges of the High Court.

At the time of the filing of the application, the five judges of this Court, other than the Chief Justice and the Deputy Chief Justice, were Supreme Court judges, acting as Supreme Court judges and were cited as such. Substantive appointments to this Court were made subsequent to the filing of the applications a quo but before the hearing of this application.

Whilst materially and correctly so, the third respondent (Musa Kika) averred in his application, that, the Chief Justice had opted to exercise the option introduced by the amendment, no such averment was made in respect of any or all of the other judges who were cited as respondents under case number HC2128/21.

We revert to this fact in detail later.

The primary relief sought in the applications a quo was a declaration that the amendment to the Constitution, in section 186, did not apply to the Chief Justice and the judges cited as respondents. Specifically, it was claimed, that, the amendment did not have any force and effect on the tenure of the Chief Justice and the cited judges as such an interpretation would fall foul of the provisions of section 328(7) of the Constitution.

Section 328(7) of the Constitution provides that:

“(7) Notwithstanding any other provision of this section, an amendment to a term–limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”

The two applications, both brought urgently, were opposed on truncated dies induciae in accordance with the terms of a case management meeting order to which all the parties agreed.

At the end of the hearing of the applications, as indicated above, the court a quo issued a singular order in the following terms:

“IT IS DECLARED THAT:

1. The second respondent in HC2128/21 who is also the second respondent in HC2166/21 ceased to hold the office of the Chief Justice of Zimbabwe and judge by operation of law on 15 May 2021 at 4:00 hours.

2. The extension of the length of time in the office of the judge beyond the age of seventy provided for in section 186 of the Constitution does not apply to the second to fourteenth and eighteenth respondents.

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

The respondents a quo, including the judges of this Court, were aggrieved by the order.

Under separate and different covers, they filed notices of appeal in the Supreme Court challenging the correctness of the decision.

It is not necessary that we set out the grounds of appeal of each appellant in full. As and when it is it necessary to do so, we shall advert to the notices of appeal.

The applicant, strongly believing, that, the effect of the first part of the order was to declare constitutionally invalid the letter of 11 May which constituted the legal authority for the Chief Justice to continue in office, filed this application in terms of section 175(3) of the Constitution.

As indicated above, he sought the setting aside of the entire order.

This he did notwithstanding, that, on its mere reading, the High Court order did not in any way refer to the conduct of the seventh respondent (the President) as constitutionally invalid.

We observe, at this stage, that, the interpretation of the High Court order by the applicant in this regard was conceded as correct by the fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondent's counsel during the hearing of the application.

We shall advert to this concession in detail in due course.

It is common cause that the applicant was not a party to either of the two applications that were determined by the High Court. He brought this application in the first instance. In the application, he alleged that he is an adult Zimbabwean who is asserting his right to access this Court directly to defend and protect the Constitution.

Arguing that the state of affairs in the country following the issuance of the High Court order was undesirable as there should never, in any jurisdiction, be doubt as to who the Chief Justice is, the applicant made two basic contentions:

(i) Firstly, he contended, that, the juristic act by the seventh respondent (the President) of accepting a medical report as to the mental and physical fitness of the Chief Justice to remain in office for an additional five years, after attaining age seventy, was valid and the High Court orders purporting to hold such as constitutionally invalid had to be set aside.

(ii) Secondly, he contended, that, section 328(7) of the Constitution, relied upon by the third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondents as precluding the amendment of the Constitution from applying to the Chief Justice and other sitting judges was not applicable as section 186(4) of the Constitution was the applicable section.

The third, fourth, and fifth respondents opposed the application.

The first (Minister of Justice, Legal and Parliamentary Affairs), second (Judicial Service Commission), sixth (Attorney General) and seventh (the President) respondents were content to keep a watching brief during the hearing of the application.

The third respondent (Musa Kika) opposed the application on the basis of a sole preliminary point. It was his position that this court should refrain from exercising jurisdiction in the matter.

Put differently, it was his position, edified during the proceedings by an oral application, that, this Court should recuse itself. In his view, since the second part of the High Court order declared that the judges of this and the Supreme Court could not extend their respective terms of office beyond the age of seventy, the order under scrutiny in the confirmation proceedings affects the judges of this Court directly.

In this regard, he was keen to highlight and place it on record, that, the judges of this Court had not only participated in the proceedings before the High Court but had since filed a notice of appeal against the High Court order.

It was therefore the mainstay of his exception and position, that, the judges of this Court were completely non-suited to hear this application on account of their positions as active litigants who were already seeking the vacation of the High Court order by way of appeal.

In his further view, the determination of the application by this Court, as constituted, would, in the circumstance of the matter, implicate a breach of the common law principle nemo judex in sua causa.

In opposing the application, the fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondents raised a number of issues:

(i) Firstly, they challenged the competence of this Court to determine the application. They also sought the recusal of the entire bench of this Court on the same ground that the third respondent (Musa Kika) had relied upon.

(ii) Secondly, and before a competently constituted Court, the fourth respondent took issue with the locus standi of the applicant to bring the application in the manner that he did. In essence, it was the fourth respondent's position that the applicant, not having obtained any rights under the High Court order, could not purport to challenge the order.

(iii) Thirdly, and regarding the merits of the matter, the fourth respondent challenged the procedural steps taken and leading to the acceptance by the seventh respondent (the President) of a medical report as to the mental and physical fitness of the Chief Justice to continue in office for an additional five years after his seventieth birthday.

Thus, broadly speaking, the application raised for determination three distinct issues. The second issue would only become relevant and fall for determination if the respondents were not successful on the first issue and the third issue would only require determination if the respondents failed on the second issue.

(i) The first issue was whether this Court should recuse itself;

(ii) If the Court did not recuse itself, the second issue would be whether the applicant had locus standi to bring the application under section 175(3) of the Constitution; and

(iii) Finally, if he did have the requisite standing, whether the application had merit....,.

PATEL JCC: It is pertinent, at this juncture, before addressing the substance of the matter, to make an observation concerning the conduct of the third respondent (Musa Kika).

Even though he was primarily instrumental in initiating the proceedings a quo, he deliberately chose not to address any issue other than that of recusal; either in his opposing affidavit or in his heads of argument.

Equally curiously, at the end of the proceedings on the question of recusal, he and his counsel elected not to appear in any further proceedings before the Court. In the event, the matter proceeded in the absence of the third respondent and without the benefit of his submissions on the substantive merits of the matter.

The relief sought by the applicant in this matter is essentially threefold:

(i) The first is a declaratur to the effect that paragraphs 1 and 2 of the operative part of the High Court judgment No.264-21, handed down on 15 May 2021, are orders of constitutional invalidity within the contemplation of section 175(1) of the Constitution.

(ii) The second is a further declarator to the effect, that, the aforesaid High Court orders have no force unless confirmed by this Court.

(iii) Lastly, the applicant seeks a substantive order declining to confirm and setting aside the impugned High Court orders.

My learned sister, MAKARAU JCC, in addressing the application for recusal, has earlier outlined the broad issues raised by this application. Having regard to the averments contained in the affidavits filed by the parties and the arguments presented before us, the specific issues that now arise for determination in this matter are as follows:

(i) Whether the applicant has the requisite locus standi to institute this application.

(ii) The effect of the failure by the applicant in the proceedings a quo (i.e. the third respondent herein) to seek and obtain leave to sue all the judges that were cited as respondents in that matter.

(iii) Whether the orders of the court a quo are orders of constitutional invalidity requiring the confirmation of this Court.

(iv) The correctness of the judgment of the court a quo -

(a) In its interpretation of sections 186 and 328 of the Constitution; and

(b) As regards the alleged violation of the right to equal protection of the law and the right of access to the courts.

(v) Whether this Court should decline to confirm and accordingly set aside the orders granted by the court a quo.

I propose to address and determine the foregoing issues ad seriatim.

Section 175 of the Constitution regulates the powers of the courts in constitutional matters. Of particular relevance in the present matter are subsections (1) and (3) of section 175 which provide as follows:

“(1) Where a court makes an order concerning the constitutional invalidity of any law or any conduct of the President or Parliament, the order has no force unless it is confirmed by the Constitutional Court.

(2)…,.

(3) Any person with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary an order concerning constitutional validity by a court in terms of subs (1).

(4)…,.

(5)…,.

(6)…,.”

I shall address the significance of section 175(1) of the Constitution later in this judgment when dealing with the import and effect of the High Court orders that are the subject of scrutiny in casu.

For the present, it is first necessary to consider the applicant's locus standi in judicio to institute the application before us.

By virtue of section 175(3) of the Constitution, it is incumbent upon the applicant to show that he is “a person with a sufficient interest” in an order concerning constitutional validity.

In paragraphs 27 to 29 of his founding affidavit, the applicant asserts, that, he is a person with sufficient interest within the contemplation of section 175(3) of the Constitution. He avers, that, as a citizen by birth, he has a sufficient interest in defending and protecting the Constitution and that section 175(3) exists for his protection as a citizen.

He further elaborates the factors which give rise to his particular interest as an ordinary citizen.

These include his belief that the President acted constitutionally in approving Justice Malaba's election to continue in office as Chief Justice for an additional 5 years and that he is in office in accordance with the Constitution following the President's approval.

The applicant further believes, that, all persons who were judges of the Supreme Court and those acting as judges of the Constitutional Court, as at 7 May 2021, are entitled to elect to retire at the age of 75 years in accordance with section 186(4) of the Constitution and that the High Court cannot contradict that position without also declaring section 186(4) of the Constitution to be constitutionally invalid.

The applicant takes issue with the fact, that, the Registrar of the High Court has not acted in terms of Rule 31(1) of the Constitutional Court Rules 2016, to place the record of proceedings in that court before this Court for confirmation.

The High Court orders will therefore remain as if they are orders unaffected by section 175(1) of the Constitution and the respondents are acting as if section 175(1) is not in issue.

The applicant accordingly affirms, that, he is entitled to a correct and final pronouncement on these issues in keeping with his right to the protection of the law coupled with his duty as a citizen to observe the Constitution and respect its institutions.

He is of the strong view, that, the third, fourth and fifth respondents have a well thought out strategy to avoid section 175(1) and that the first, second and sixth respondents appear not to have realised the impact of that strategy.

However, he is very alert, as a citizen, and this is the source of his sufficient interest because every citizen of Zimbabwe has automatic standing to challenge any attempt to render redundant the provisions of the Constitution, such as section 175(1) of the Constitution.

Counsel for the applicant, submits, that, the applicant, as a citizen, has a sufficient interest and the right to approach this Court to vindicate and protect the Constitution. The common law requires a direct and substantial interest in order to found locus standi, but, that is not the test to be applied in casu. It does not matter that the applicant was not a party to the proceedings a quo. He is entitled to defend the Constitution as a citizen so as to avoid over-reach by a subordinate court within the separation of powers framework.

Counsel for the applicant further argues, that, citizenship is a key element in giving rise to a sufficient interest within the meaning of section 175(3) of the Constitution and that every citizen has an automatic and sufficient interest in any matter relating to the Constitution.

Apart from being a citizen by birth, the applicant also has a sufficient interest by reason of being concerned and aggrieved by the conduct of the Registrar of the High Court and the strategy of avoidance adopted by the third, fourth, and fifth respondents.

Counsel for the fourth and fifth respondents, submits, that, section 175(3) of the Constitution, as read with Rule 35 of the Constitutional Court Rules, requires the demonstration of a right to approach this Court.

The present matter is a review relating to a dispute between the parties to the proceedings a quo and the applicant was not a party to those proceedings. Section 85(1) of the Constitution is different from section 175(3) which goes further to require a sufficient interest. The applicant's claim is based on his personal views and not on any sufficient interest. He therefore lacks the requisite locus standi in casu because he was not cited in the proceedings a quo.

Per contra, Mr Zhuwarara, the amicus curiae in this matter, submits that this Court has an investigative role in confirmation proceedings. Consequently, the question of locus standi pales into insignificance.

In any case, a citizen has a sufficient interest in questions relating to judicial authority by virtue of section 162 of the Constitution which states, that, judicial authority derives from the people and is vested in the courts.

What is more important is the role of this Court on questions relating to the invalidity of any law. Any declaration of a subordinate court is subject to the over-arching jurisdiction and supervisory role of the Constitutional Court, irrespective of the locus standi of any applicant.

The critical question to be determined is this: What is the meaning to be assigned to the phrase “any person with a sufficient interest” as used in section 175(3) of the Constitution?

The word 'interest' qua legal interest, is employed variously in the Constitution.

It appears in section 85(1) with reference to litigation 'in any person's own interests' or 'in the interests of a group or class of persons' or 'in the public interest' or by 'any association acting in the interests of its members' alleging that a fundamental right or freedom has been, is being or is likely to be infringed.

It also appears in section 113(7) which enables 'any interested person' to approach this Court to determine the validity of a declaration or extension of a state of public emergency.

Again, section 167(5) provides that the Rules of the Court must allow a person 'when it is in the interests of justice' to approach the Court in relation to any constitutional matter or any issue connected with a decision on a constitutional matter.

The foregoing enumeration is obviously not exhaustive. Nevertheless, it serves to illustrate that the use of the word 'interest' and its derivatives in the Constitution is variegated and that its specific meaning depends upon the particular context in which it appears.

The instances cited also demonstrate, that, the provisions in question are designed to preserve the integrity of the Constitution through the conferment of broad and expansive legal standing in the determination of constitutional questions and matters.

Reverting to section 175(3) of the Constitution, it is necessary to have regard to the point, that, the word 'interest' is coloured and qualified by the use of the word 'sufficient'. The latter is defined in various dictionaries as 'enough to meet the needs of a situation or a proposed end' or 'enough for a particular purpose'.

These definitions underscore the need to have regard to the specific purpose for which sufficiency is required.

In the context of section 175(3) of the Constitution, the central objective that is to be attained is the confirmation or variation of a court order concerning the constitutional invalidity of any law or any conduct of the President or Parliament.

What this means is that in order to assess the sufficiency of any person's legal interest in the matter, it is necessary to ascertain the particular purpose which has actuated that person to approach this Court to seek the confirmation or variation of the order made by the subordinate court concerning constitutional validity.

Under the common law, legal standing in civil suits is ordinarily confined to persons who can demonstrate a direct or substantial interest in the matter: see Zimbabwe Teachers Association & Ors v Minister of Education 1990 (2) ZLR 48 (HC)…,.

However, it is now well established that the test for locus standi in constitutional cases is not as restrictive but significantly wider.

This approach was aptly articulated in Ferreira v Levin N.O. & Others 1996 (1) SA 984 (CC)…,.:

“…,. I can see no good reason for adopting a narrow approach to the issue of standing in constitutional cases. On the contrary, it is my view, that, we should rather adopt a broad approach to standing. This would be consistent with the mandate given to this court to uphold the Constitution and would serve to ensure that constitutional rights enjoy the full measure of the protection to which they are entitled.”

The broad approach to locus standi in constitutional cases was also affirmed by this Court in Mawarire v Mugabe N.O. & Ors 2013 (1) ZLR 469 (CC), where the applicant's standing was endorsed on the basis that he had invoked the jurisdiction of the Constitutional Court on a matter of public importance.

The position advanced on behalf of the fourth and fifth respondents is that the applicant lacks the requisite sufficient interest in casu because he was not a litigant in or party to the proceedings a quo.

This position is palpably unsustainable for several very compelling reasons.

(i) First and foremost is the wording of section 175(3) of the Constitution itself.

The reference to 'any person' with a sufficient interest makes it abundantly clear that it is not confined to litigants or parties before the subordinate court that has rendered the order of constitutional invalidity.

This is fortified by the fact, that, confirmation proceedings, under section 175(3) of the Constitution, to confirm or vary the order, can be brought to this Court not only by way of appeal but also by means of an application.

This clearly signifies that locus standi is extended to any person with a sufficient interest - even if he or she has not been a party to the proceedings a quo.

(ii) Secondly, unlike the position that obtains under section 85(1) of the Constitution, a person invoking the Court's jurisdiction under section 175(3) is not required to allege and prove any infringement of his or her own fundamental rights or those of any other person: see in this regard Ferreira v Levin N.O. & Others 1996 (1) SA 984 (CC)…,.; M & Anor v Minister of Justice, Legal and Parliamentary Affairs N.O. & Ors 2016 (2) ZLR 45 (CC); Mudzuru & Anor v Minister of Justice, Legal and Parliamentary Affairs & Ors CC12-15.

What is more important in assessing the requisite sufficient interest is the nature, substance, and gravity of the constitutional matter that has prompted the person concerned to apply to this Court for a determination and consequential relief.

(iii) Thirdly, it is pertinent to have regard to the provisions of Rule 31 of the Constitutional Court Rules.

This Rule governs the procedure for confirmation of an order of constitutional invalidity.

Rule 31(2) relates specifically to the filing of heads of argument by the parties to the proceedings before the court a quo, where the Registrar or Clerk of that court has, acting in terms of Rule 31(1), filed with the Registrar of this Court the relevant record of proceedings, including the court order for confirmation.

On the other hand, Rule 31(3) entitles "any person or entity of State” to appeal against an order of constitutional invalidity, while Rule 31(5) enables 'a person or entity of State' to apply for the confirmation of any such order.

Both subrules require the appellant or applicant in question to be “entitled to do so” i.e. to appeal or apply, as the case may be.

What is not provided for, and what is obviously a casus omissus, is the recourse to an appeal or application to vary an order concerning constitutional validity, as is expressly envisaged by section 175(3) of the Constitution.

In any event, what is self-evident from the provisions of Rule 31 is that the prescribed procedures for confirmation or otherwise are not confined to the parties or litigants a quo but extend as well to any person or State entity that is entitled to appeal or apply by reason of being vested with a sufficient interest in the matter.

The submission made on behalf of the applicant is that every citizen has a sufficient interest, under section 175(3) of the Constitution, to approach this Court to vindicate and protect the Constitution.

It is also contended, that, any citizen has an automatic and sufficient interest in any matter relating to the Constitution.

It is therefore necessary, so it is argued, to draw a distinction between citizens and non-citizens.

This position, in my view, is not entirely tenable.

While I agree that being a citizen by birth is a relevant factor, I do not think that citizenship, per se, can invariably be regarded as an automatic and exclusive criterion in order to establish legal standing under section 175(3) of the Constitution.

It is perfectly conceivable that a non-citizen, and even a foreign resident, might be entitled to approach this Court as having the requisite sufficient interest in the matter.

Each case will depend upon the terms and ramifications of the court order that is the subject of confirmation proceedings as well as the personal attributes and circumstances of the individual applicant concerned.

The fact that he or she is not a citizen, whether by birth or otherwise, does not preclude him or her from approaching this Court in order to either vindicate or challenge an order concerning constitutional validity made by any subordinate court.

As I have postulated earlier, in assessing “sufficient interest” in the context of section 175(3) of the Constitution, it is of critical importance to have regard to the purpose for which the person in question has appealed or applied to this Court to confirm or vary the order of constitutional invalidity rendered by the lower court.

Turning to the applicant in casu, the reasons that he proffers for mounting the present application revolve around the nature and effect of the orders made by the court a quo and what has transpired thereafter.

To recapitulate, he firmly believes, that, the President acted constitutionally in extending the tenure of office of the incumbent Chief Justice for a further 5 years. He also believes that judges of the Supreme Court, and those acting as judges of the Constitutional Court, are entitled to elect to retire at the age of 75 years.

He is concerned by the fact, that, the Registrar of the High Court has failed to process the orders of the court a quo in conformity with the Rules of this Court, thereby leaving them intact and unaffected by the requirements of section 175(1) of the Constitution.

He is also aggrieved by what he perceives to be the deliberate strategy adopted by the third, fourth and fifth respondents (Musa Kika, Young Lawyers Association of Zimbabwe and Frederick Charles Mutanda) to avoid and subvert the requirements of section 175(1) of the Constitution and the failure of the first, second, and sixth respondents (Minister of Justice, Legal and Parliamentary Affairs, Judicial Service Commission and the Attorney General) to realise the impact of that strategy.

He accordingly claims, that, he is entitled to a correct and final pronouncement on the matter so as to avoid the relevant provisions of the Constitution being rendered redundant.

As against this, none of the respondents in casu has questioned the veracity of the applicant's convictions, other than to ridicule them as the subjective views of a mere “busybody”.

In the event, his averments and assertions remain substantially unchallenged and I see no cogent reason to discredit or discount them.

As an “alert citizen” he wishes to ensure, that, the strictures of the Constitution are duly complied with and that its integrity is appropriately preserved. He also wishes to defend the conduct of Parliament in the enactment of section 186 of the Constitution as well as the conduct of the President extending the tenure of the incumbent Chief Justice pursuant to that section.

All in all, I am of the considered view, that, the applicant is motivated in instituting the present application both by his own interest, as a concerned citizen, and in the general public interest in a matter of paramount public importance.

In short, he is actuated by the desire to vindicate the provisions of the Constitution pertaining to judicial tenure.

In these circumstances, I am of the considered opinion that the applicant has put forward a very compelling case for establishing the requisite “sufficient interest” within the contemplation of section 175(3) of the Constitution, for the purpose of contesting the propriety of the orders rendered by the court a quo under judgment no. HH264-21 on 15 May 2021.

It follows, that, the preliminary objection to the applicant's locus standi in judicio is without merit and cannot be sustained. It is accordingly dismissed.

This is an application for leave to appeal against a decision of the Supreme Court handed down on 25 November 2021.

Holding that there was no proper appeal before it, the Supreme Court struck from its roll the appeal that the applicant had noted against a judgment of the High Court.

Using its review powers, the Supreme Court proceeded to set aside the proceedings of the High Court. In doing so, it held that the High Court did not have the requisite jurisdiction to determine the matter as it did or at all.

It is this order that the applicant intends to appeal against, with leave.

The applicant was arrested by the police on 23 November 2017. He is facing one count of contravening the Prevention of Corruption Act [Chapter 9.16], and one count each of contravening sections 174(1)(a) and 126 of the Criminal Law (Codification and Reform) Act [Chapter 9.23]. These relate to abuse of office as a public officer and fraud respectively. He is appearing before the Magistrates Court.

Prior to his arrest by the police, the applicant alleges that he was unlawfully arrested by the military police, in particular, seven men in military uniform and armed with assault rifles. He further alleges that these seven men, in military uniforms, armed with assault rifles, blindfolded him and took him to an unknown place where they forcibly held and interrogated him for nine days.

Thereafter, the applicant was formally arrested by the police.

Upon being arraigned before a magistrate, the applicant pleaded with the court not to be placed on remand for the alleged offences as his arrest was unlawful.

In essence, he was seeking, as consequential relief, a permanent stay of his prosecution on the three charges.

In this regard, he contended that his arrest, for the purposes of the law, had commenced when he was arrested by the unknown military personnel, agents of the State and that such arrest was patently unconstitutional as he was not brought before a court within the forty-eight hours stipulated in the law.

The arrest and torture of the applicant by the men in military uniform was not challenged by the first and second respondents before the magistrate or in any proceedings thereafter.

In arguing that the applicant's rights had been duly observed upon his arrest, the first and second respondents confined their submissions to the events that unfolded after the formal arrest of the applicant by the police.

Ruling on the unlawful arrest and torture of the applicant, the trial magistrate found, that, the applicant had failed to prove that the seven men in military uniform, and armed with assault rifles, were agents of the State. After further finding that his subsequent arrest by the police was procedural, the trial magistrate placed the applicant on remand, denied him bail, and remanded him in custody.

The applicant was, in due course, granted bail by the High Court.

In doing so, the High Court expressed its disquiet over the failure by the trial magistrate to properly investigate the alleged infringements of the applicant's rights and freedoms.

The trial of the applicant commenced.

Whilst it was underway, the applicant approached the High Court, under section 85(1) of the Constitution, once again seeking a permanent stay of the criminal proceedings against him on the basis that his rights and freedoms had been infringed as detailed above.

At the hearing of the matter before the High Court, the issue of the jurisdiction of that court to determine the matter during the pendency of the criminal trial before the Magistrates Court arose.

The High Court dismissed the contention that it did not have the requisite jurisdiction to determine the matter.

It nevertheless went on to dismiss the matter on the basis, that, the torture of the applicant was for no apparent reason in that it had not elicited any evidence or confession from the applicant. Being gratuitous, the torture of the applicant by the military was, at law, not a sound basis for permanently staying the criminal proceedings against him, the High Court went on to rule.

Dissatisfied with the dismissal of his application by the High Court, the applicant noted an appeal to the Supreme Court. It is not necessary that I set out the grounds of the appeal. This is so, because, in its decision, the Supreme Court neither determined nor adverted to these grounds.

It is however pertinent to record, that, the finding by the High Court, that it had jurisdiction in the matter, was not appealed or cross-appealed against.

Mero motu, the Supreme Court raised the issue.

It thereafter properly invited the parties to make additional submissions addressing the legal position governing the jurisdiction of the High Court in the matter.

It was the view of the Supreme Court, and correctly so, that, the provisions of section 175(4) of the Constitution were integral to the appeal that was before it, and, in particular, on the issue it had raised with the parties.

This is the provision that details the procedure to be adopted when a constitutional matter arises during any court proceedings.

The Supreme Court was keenly alive to the pending criminal proceedings before the Magistrate's Court, and during which proceedings the constitutional question of the legal redress of the applicant's unlawful arrest and torture had arisen.

Consequently, the Supreme Court found, that, by approaching the High Court during the pendency of the proceedings before the Magistrates Courts, the applicant had contradicted the precepts of certainty of process as articulated by this Court in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC).

I advert to this point in greater detail below.

In the final analysis, the Supreme Court held, that, the ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) applied in full force to the facts before it. It also made the following four observations:

1. That, the Magistrates Court had vantage over the High Court in that it had heard evidence on the matter whereas the High Court was relying on an affidavit;

2. That, the Magistrates Court had jurisdiction in the matter;

3. That, the proceedings before the High Court had the potential to disrupt the proceedings in the Magistrates Court; and

4. That, the approach to the High Court was novel and was not supported by an elaborate procedure as the one set out in the rules of the Constitutional Court.

As a result, the decision by the High Court was found, rather euphemistically, to have been made on no sound jurisdictional basis and was accordingly set aside. In short, the Supreme Court held, that, the High Court had no jurisdiction in the matter.

In the event that he is successful in the application for leave, the applicant intends to appeal against the decision of the Supreme Court on the following three grounds:

“1. The court a quo misdirected itself in not finding, that, the fact that the High Court is a 'superior court of record' under section 170 of the Constitution prohibited the Supreme Court from regarding the High Court as one of the 'inferior courts of justice' referred to in section 25 of the Supreme Court Act [Chapter 7.13].

2. The court a quo misdirected itself and erred in law in applying the precepts set out in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) to take away the jurisdiction of the High Court to determine the appellant's application brought to it under section 85 of the Constitution, notwithstanding the pendency of criminal proceedings in the magistrates court.

3. The court a quo erred and misdirected itself in not finding, that, once the High Court, rightly or wrongly, assumed jurisdiction and determined on the merits, an application under section 85 of the Constitution, the resultant judgment could not be a nullity.”

The broad issue that falls for determination in this application is whether it is in the interests of justice that the applicant be granted leave to appeal to this Court against the order of the Supreme Court.

The narrow and more specific issue is whether the decision of the Supreme Court was on a constitutional issue that was clearly articulated, and, additionally, whether the intended appeal enjoys prospects of success.

I define the issues narrowly in this fashion following the requirements of the law governing the determination of applications for leave to appeal to this Court....,.

The first ground of appeal raises the issue of the review jurisdiction of the Supreme Court over the proceedings and decisions of the High Court.

It is the appellant's contention, that, the High Court is a “superior court of record” under section 170 of the Constitution and that this in turn prohibits the Supreme Court from regarding it as one of the “inferior courts of justice” referred to in section 25 of the Supreme Court Act [Chapter 7.13].

As correctly noted by the applicant, section 170 of the Constitution provides that the High Court is a superior court of record.

The term “superior court of record” is however not defined in the Constitution.

Counsel for the applicant relied on the remarks by the Supreme Court in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) where the court held, that, the High Court was not an inferior court as contemplated by section 25 of the Supreme Court of Zimbabwe Act.

Whilst this decision has not been specifically overruled subsequently, it has been studiously and routinely ignored by the Supreme Court itself.

Quite apart from the fact that the Supreme Court is not bound by its own decisions, this is one decision that is well known in the jurisdiction for the fact that it has been ignored more times than it has been applied.

For the purposes of determining this application, it is not necessary that I debate and determine the stare decisis effect of Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) generally or seek to reconcile it with the numerous later decisions of the Supreme Court that have clearly gone against it.

This is so because it is my considered view, that, this application, and the intended appeal, turn and fall by the way side on the basis of the second issue raised by the applicant....,.

One of the crucial elements of the new constitutional dispension ushered in by the 2013 Constitution is to make a decisive break from turning a blind eye to constitutional obligations. To achieve this goal, the drafters of the Zimbabwean Constitution Amendment (No.20) Act 2013 (“the Constitution”) adopted the rule of law and supremacy of the Constitution as some of the core founding values and principles of our constitutional democracy.

For this reason, public office bearers ignore their constitutional obligations at their own peril. Left unchecked, those clothed with State authority, or public power, may quite often find the temptation to abuse such powers irresistible, as Lord Acton famously remarked:

“Power tends to corrupt, and absolute power corrupts absolutely!”

John Emerich Dalberg-Acton, 1st Baron Acton, coined the proverbial saying in 1857 using similar ideas expressed by several of his contemporaries. The fuller expression reads:

“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority; still more when you super-add the tendency of the certainty of corruption by authority.”

Mechanisms to oversee how public power and State authority is exercised by those so entrusted must be tightened and strengthened. More importantly, if such mechanisms are by command of the supreme law of the land, the Constitution, they must be put in place within a reasonable time to actualise the Constitution as a living document.

To this end, the State, its organs, and functionaries cannot, without consequence, be allowed to adopt a lackadaisical attitude, at the expense of the public interest, in bringing into operation institutions and mechanisms commanded by the supreme law: see the case of Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC)…,.

However, this case also illustrates the need, on the part of the litigants, to move away from old fashioned Private Law habits when it comes to Constitutional Law litigation. While constitutional litigation may entail the vindication of a private right, it differs from Private Law litigation in that over and above that it seeks to entrench legality and the deepening of the constitutional order for the benefit of the broader public.

This is why it has been said that:

“Where a matter concerns the constitutionality of a law…, the need for certainty may require the court to decide the matter irrespective of whether or not the party advancing the challenge had standing:” MAX du PLESSIS et al 'Constitutional Litigation' Juta, 2013 quoting the South African cases of Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC)…, and South African Liquor Traders Association v Chairperson, Gauteng Liquor Board 2006 (8) BCLR 901 (CC)…,.

This application seeks to enforce the enactment of the law envisioned in section 210 of the Constitution to provide for “an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.”

It also seeks a declarator that the respondents have breached the Constitution by failing to enact such a law timeously after the coming into operation of the new Constitution and a mandamus for the respondents to gazette the Bill envisioned in section 210 of the Constitution thereof within forty-five days.

At the time of hearing of the application, a period of two years and four, five months had lapsed from the time of coming into operation of the rest of the Constitution, on 22 August 2013, when the President-elect, under the Constitution, assumed office. That delay, of less than two and a half years, might not have been sufficient to satisfy a finding of violation of the Constitution and the application might have failed on that score, with a period of, say, three being deemed to be the sufficient one.

However, post-hearing, intimations or overtures that the matter might be settled by consent of the parties were made necessitating the holding of three Court-presided meetings of the parties over time on the basis that both sides were agreed that the envisaged legislation had to be enacted; and, indeed, both sides agreed that the application was essentially not opposed, but differed slightly on the appropriate timelines for the enactment of the law.

Herein lies the nub of this matter.

Had the constitutional legality principle been put above all else, the application could have been granted immediately with immense public benefit. However, the Private Law litigation habit of “winner takes all” of wanting the other side to be declared a violator of the Constitution stood in the way as did the attitude on the other side of not wanting to make any move unless so ordered.

Had the Court appreciated, then, how deeply entrenched these arcane positions were, relics of Private Law litigation habits, a different approach could have been adopted of immediately issuing the order, with reasons to follow.

It is regretted that this approach was not followed.

The applicants are citizens of Zimbabwe who have taken it upon themselves to see to it that the respondents adhere to the constitutionally-created obligations imposed on them by section 210 of the Constitution.

The applicants submit, that, the respondents have done nothing to fulfil their constitutional obligations clearly outlined in the supreme law.

Section 210 of the Constitution requires the enactment of a law to provide for an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.

The applicants aver, that, it has been over two years since the inception of the Constitution and the Act required, in terms of section 210 of the Constitution, has not been put in place.

It is further the applicant's contention, that, the failure by the respondents to enact the law, in terms of section 210 of the Constitution, is a breach of the Constitution. The right to equal protection of the law, under section 56(1) of the Constitution, is under threat, according to the applicants, due to failure or delay in enacting the law directed by section 210 of the Constitution.

The application is opposed.

The respondents submit, that, the law-making process cannot be carried out overnight. The respondents further submitted, that, they are working on making sure that the Act is in place and filed of record a working document they are allegedly focused on as a roadmap towards the eventual enactment of the law in question.

The timeline within which the Act envisaged by section 210 of the Constitution should be enacted sits at the heart of this application.

The applicants, in their final submission to this Court, are seeking the following relief:

1. The respondents failure, to enact the law provided for in terms of section 210 of the Constitution of Zimbabwe, is in breach of the Constitution of Zimbabwe.

2. The failure by the respondents, to enact the law to bring into effect section 210 of the Constitution of Zimbabwe, is a violation of the applicant's right to equal protection and benefit of the law as defined by section 56(1) of the Constitution.

3. The respondents must gazette the Bill envisaged by section 210 of the Constitution of Zimbabwe within 45 days from the date of this order.

4. The respondents, jointly and severally, each paying the other to be absolved pay costs of suit.

The first question this Court is seized with is whether or not the applicants have locus standi to bring this matter before this Court. This question shall be disposed of first before delving into questions arising from the merits of the application.

On the merits of the application, three questions arise and they are the following:

(1) Whether or not the respondent's delay in enacting the law, provided for in terms of section 210 of the Constitution of Zimbabwe, constitutes an unreasonable delay in fulfilling constitutional obligations in terms the Constitution of Zimbabwe.

(2) Whether or not the requirements for a mandamus have been satisfied to order the respondents to gazette the Bill envisaged by section 210 of the Constitution of Zimbabwe within forty five days from the date of this order.

The aforementioned questions, on merit, will be disposed of separately hereunder after addressing preliminary and standing issues....,.

There is no real objection by the respondents to the applicants claim.

The respondents objection, in varying language, is to the effect, that, there has not been a violation of the applicants rights by the respondents. The respondents argument is that the gazetting of the Bill envisaged by section 210 of the Constitution takes time and that due diligence requires the process not to be rushed.

Therefore, the respondents, in substance, are not opposed to the gazetting of the Bill.

If anything, they affirm the need to honour constitutionally created obligations such as section 210 of the Constitution.

On the other hand, the applicants insist on the need for prompt adherence to constitutionally-created obligations by the respondents in line with the Constitution. This means the enactment and promulgation, by the respondents, of the Act envisioned by section 210 of the Constitution within a reasonable time....,.

Section 210 of the Constitution, quoted verbatim, reads as follows:

“210 Independent Complaints Mechanisms

An Act of Parliament must provide an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.”

The section is in clear and unambiguous language, couched in peremptory language.

The provision of an effective and independent mechanism for receiving and investigating complaints from members of the of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct, must be empowered by an Act of Parliament.

Section 210 of the Constitution does not specify the timeframe within which the Act must be enacted and promulgated. Section 324 of the Constitution, however, requires that all constitutional obligations must be performed diligently and without delay.

The South African Constitution contains a similar provision which was subject to interpretation in the case of Minister of Justice and Constitutional Development v Chonco and Others 2010 (4) SA 82 (CC). The South African Constitutional Court, in interpreting the equivalent to section 324 of the Zimbabwe Constitution, had this to say:

“…,. good governance and social trust are premised, at least partly, on reasonable responsive decision making.”…,.

Reasonable and responsive decision making is therefore what is contemplated in section 324 of the Constitution. The question arising is whether a reasonable time frame has been exceeded since the inception of the Constitution.

Section 210 of the Constitution came into effect on the day the President elected, under the Constitution in the first elections, assumed office: see paragraph 32 of the Sixth Schedule of the Constitution.

The President of the Republic of Zimbabwe assumed office on 22 August 2013. If one is to calculate the time, from 22 August to date of filing of this application, on 15 October 2015, a period of twenty seven months two weeks had elapsed, or slightly over two years; and, if the time taken into reckoning is the hearing date, then, as already noted, the period would be less than two years and a half – hardly sufficient to support a finding of undue delay.

However, one must be alive to the fact, that, up to date, more than seven years later, the Act in question has not been enacted.

The Constitution is clear on the point, that, all constitutional obligations must be performed diligently and without delay. In answering the question whether or not the respondents have failed in discharging their constitutional obligation without delay, regard must be had to the process of the origination of Bills.

Public Bills generally go through preliminary stages before they are brought to Parliament. The responsible Minister first presents proposals to cabinet. Once cabinet is satisfied that the proposals are in line with Government policy, the responsible Minister is directed to prepare a draft Bill along agreed lines. The Legal Drafting Department in the Attorney General's office prepares a draft Bill for consideration by the Cabinet Committee on Legislation. Once the Bill has been approved by Cabinet it is then published in the Government Gazette, about fourteen days before its introduction in Parliament.

The process described above relates only to Bills introduced by members of the Executive.

Private members Bills have to be brought in by motion. If that motion is approved by the House, the Bill is then printed and introduced in Parliament.

One should also note that a Bill can also be introduced in Parliament by a Minister responsible for a particular Ministry.

The first respondent is one such Minister who may introduce a Bill in Parliament.

The Bill envisaged in section 210 of the Constitution has not yet been introduced in Parliament, let alone gazetted. What has been filed of record is what the respondents term a “working document” which ex facie are notes on the alignment of laws to the Constitution focusing on section 210 of the Constitution.

Although the process of how proposals become Bills is largely shrouded in secrecy, L. MADHUKU 'Introduction to Zimbabwean Law' enumerates stages of a Bill before it is gazetted and introduced in Parliament. The stages are stated hereunder:

“1. Cabinet makes a policy decision that a certain law is to be made.

2. The decision is communicated to the relevant government department by the relevant Minister. It must, in turn, prepare a set of detailed principles to govern the legislation.

3. These principles are sent to the Cabinet Committee on Legislation (CCL). This is a sub-committee of cabinet tasked with supervising legislative drafting. Its function is to debate and approve the principles in the light of policy spelt out by the full cabinet.

4. From the Cabinet Committee on Legislation (CCL), the principles are sent to the Attorney General's Office, where a drafts-person is appointed and assigned the role of drafting the piece of legislation. He or she must work in constant consultation with the relevant Government department.

5. When the department is satisfied with the draft, it sends a draft Bill, together with an accompanying memorandum, to the Cabinet Committee on Legislation (CCL), which must scrutinize it in light of the principles and the policy articulated by the full cabinet.

6. After approval by the Cabinet Committee on Legislation (CCL), the Bill may either be sent to the full cabinet, in case of important or controversial Bill, or to Parliament, if the CCL has been mandated to follow that route.”

Subsequently to the above noted stages, the Bill is then introduced to Parliament by the relevant minister after it is gazetted.

Paragraph 3(c) of the Fifth Schedule to the Constitution mentions who may introduce a Bill to Parliament. The section provides that:

“Any Vice-President, Minister or Deputy Minister may introduce into motion for debate in or present any petition to either the Senate or the National Assembly.”

After the introduction of the Bill to Parliament, the Constitution and Standing Rules and Orders of Parliament provides the procedure to be followed until a Bill is assented to by the President to become law. Paragraph 5 of the Fifth Schedule of the Constitution sets out how the transmission of Bills between Houses happens after their introduction to Parliament.

What is pertinent to note is that the process, starting from when a Bill is introduced in Parliament, is beyond the control of the respondents. The respondents do not have powers to control what happens in Parliament.

It is the lack of diligence during the pre-Bill stage that the applicants take issue with.

Although the Constitution is silent on the exact timelines within which the Act envisaged in section 210 of the Constitution should be enacted, the same Constitution requires all constitutional obligations to be performed diligently and without delay.

A period of over seven years has passed since the coming into force of the Constitution.

That period of time, in my view, exceeds reasonable time within which the respondents should have discharged their constitutional obligation. Good governance and social trust are premised, at least, partly, on reasonable, responsive, and forthright decision making.

The crafting of section 210 of the Constitution is peremptory.

The Constitution is the conscience of the nation and the courts are its guardians or custodians: see case of South African Revenue Authority v Commissioner for Conciliation, Mediation and Arbitration and Others [2016] ZACC 38.

On this Court's shoulder rests the very important responsibility of holding our constitutional democracy together and giving hope to all our people that their constitutional aspirations will be realised and protected.

Whilst the court remains alive to the fact that coming up with Bills or legislation does not happen overnight, one can take judicial notice of the shortest timelines within which a Bill can take from its formulation to it becoming an Act. The Labour Amendment Act of 2015, for example, took less than thirty days from its formulation to its promulgation.

The respondents failure, to present a Bill before Parliament for a period in excess of seven years therefore constitutes an unreasonable delay.

This judgment is given in default of appearance by the respondents. I am much concerned by the conduct of the officials from the office of the Attorney General, the second respondent herein.

This was an opposed application.

The respondents, through the Attorney-General, filed a notice of opposition. The record indicates, that, the notice of set down was served personally on one Talent Undenge, the law officer in the Attorney General's office who runs its civil division at Masvingo. But, on the day of hearing, not only was there no appearance by anyone from the Attorney General, but, also, there was not a word or any advice on what the respondents position was. Yet the relief sought by the applicant has far reaching consequences.

The relief sought by the applicant has far reaching consequences in that he wants a declaration of constitutional invalidity of section 93(5a) of the Labour Act [Chapter 28:01] and section 8(3) of the Labour (National Employment Code of Conduct) Regulations 2006, S.I.15 of 2006 (“the National Employment Code of Conduct”).

The applicant says that section 93(5a) of the Labour Act violates section 68(3) and section 69(2) of the Constitution; that, section 8(3) of the National Employment Code of Conduct violates the right to the protection of the law as guaranteed by section 56(1) of the Constitution and that both section 93(5a) of the Labour Act and section 8(3) of the National Employment Code of Conduct contravene section 134(b) of the Constitution.

As such, he wants his case referred to the Constitutional Court for final determination, allegedly in terms of section 167(3) of the Constitution.

In simple terms, section 93(5a) of the Labour Act, a recent amendment to the Labour Act (i.e. in 2015), empowers a labour officer to apply to the Labour Court for the enforcement of his or her determination against an employer.

Only the employer gets cited in such an application.

For that, the applicant says, the provision discriminates against employees, something contrary to section 68 and section 69 of the Constitution. These two provisions of the Constitution guarantee to every person the right to administrative justice and to a fair hearing.

As for section 8(3) of the National Employment Code of Conduct, the applicant wants it struck off on the ground that it contains a typographical error in that it refers to a non-existent provision. He says because of it, he became non-suited in his dispute against his employer. Yet, section 56(1) of the Constitution guarantees to everyone the right to equal treatment and protection before the law.

On the other hand, section 134(b) of the Constitution does not permit a statutory instrument (such as the National Employment Code of Conduct) to infringe or limit any of the rights and freedoms set out in the Declaration of Rights.

The Constitution is the supreme law of Zimbabwe. No other law can say something to the contrary and remain valid. The courts have the power and mandate to declare a statutory provision as being inconsistent with the Constitution. But, this function is not a light matter. It is not a power that is exercised arbitrarily. Laws are made by Parliament, a legislative body made up of two Houses. The men and women who sit in them take time to scrutinise, debate, and critique a law before it is passed. It is only in cases where the court is completely satisfied that a particular law is at war with the Constitution that it will strike it down.

In this case, with the respondents in default, I could have simply granted a default judgment and announced it ex tempore on the day of hearing. But, given what is at stake, I considered it prudent to reserve my decision and think through it properly, moreso as the applicant was not represented.

Even though it was evident someone with a glimpse of legal knowledge was advising and drafting the papers for the applicant behind the scenes, it was not that easy to quite grasp the factual matrix of the dispute and its trajectory from the moment it arose.

I ended up asking the applicant to file supplementary papers on what exactly had transpired, both at the workplace and in the labour “courts.”

The matter is an employment dispute. It has a chequered past.

The dispute erupted at the workplace. It bobbed there for a while. Eventually, it bounced into the chambers of the Labour Officer. From there, it escalated to the Labour Court. After that, it became a game of ping pong. The matter was thrown back to the labour office; back to the Labour Court; back to the labour office again; back to the Labour Court; back to the workplace; back to the labour office; back to the Labour Court; and, finally to the Supreme Court.

The superior court did not decide the matter. The applicant felt unstuck. He finally came to the High Court.

I heard the applicant on 27 August 2018. He tried his best. But, at the end, I was none the wiser. The employer was not cited as a party. As said already, the Attorney-General was in default. He and the first respondent had been barred anyway for failure to file heads of argument in accordance with Order 32 Rule 238(2) and (2a) of the Rules of this Court.

But, in a matter with such a rugged past, and given the nature of the relief sought, I could do with some properly reasoned arguments and a graceful presentation. Yet, the applicant is entitled to administrative justice in terms of section 68 of the Constitution.

Rule 238(2b) of the High Court Rules says, where a respondent fails to file heads of argument timeously he or she is barred. Thereafter, the court or judge may deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.

I opted to hear the matter on the merits.

The facts were these:

In the beginning, the applicant was an employee of a trade union, the Zimbabwe Educational Scientific, Social and Cultural Workers Union. He was a Regional Officer based at Masvingo. He was dismissed for misconduct. The dismissal followed a disciplinary process in terms of the National Employment Code of Conduct.

The applicant wanted to appeal the dismissal. He said he faced a dilemma. The dilemma stemmed from what he perceived to be a typographical error in the National Employment Code of Conduct.

Evidently, there is such an error in those Regulations.

Section 8 of the National Employment Code of Conduct governs appeals at, and from the workplace. It provides for internal appeal structures at the work-place in the form of an Appeals Officer or Appeals Committee, depending on the size of the establishment or work place. Such internal appeal structures should not exceed two appeal authorities.

In terms of section 8(3) of the National Employment Code of Conduct, a person aggrieved by a decision can appeal, in writing, and within seven working days, to the Appeals Officer or Appeals Committee.

There is a problem with this sub-section.

It is imprecise. It does not say whose decision is appealable to the Appeals Officer or Appeals Committee. It says it is a decision “…, made in terms of section (2)…,.”

But, section (2) does not exist.

The substantive section 2 is an interpretation provision. It has nothing to do with disciplinary proceedings. Disciplinary proceedings, such as would lead to the termination of employment, are governed by section 6 of the National Employment Code of Conduct. So, section 2 cannot be the provision section 8(3) of the National Employment Code of Conduct purports to refer to.

At any rate, it is a technique of legislative drafting not to use brackets for numerals representing substantive, standalone sections in statutes.

So, if the reference in section 8(3) of the National Employment Code of Conduct cannot be to a substantive section 2, one would assume it is meant to refer to section 8(2) of the National Employment Code of Conduct. But, again, that cannot be. Section 8(2) does not deal with disciplinary processes. It is the one that provides for the internal appeal structures that should not exceed two authorities.

The applicant says, faced with such a dilemma, he looked elsewhere. He discovered that section 8(6) of the National Employment Code of Conduct is another provision dealing with appeals. That provision says a person who is aggrieved by a decision or manner in which an appeal is handled by the employer or the Appeals Officer or Appeals Committee may refer the case to a Labour Officer or an Employment Council within seven days.

The applicant says he considered it was section 8(6) of the National Employment Code of Conduct that applied to his situation because section 8(3) referred to a non-existent provision.

At any rate, his employer had no appeal structures as envisaged by the National Employment Code of Conduct. He referred his case to the Labour Officer the same day that he received the dismissal penalty.

That was in March 2015.

In terms of section 8(7) of the National Employment Code of Conduct, a Labour Officer, to whom a matter is referred in terms of section 8(6), can dispose of it in one of several ways set out in section 93 of the Labour Act. Before this section was amended in 2015, these ways included conciliation or a reference to compulsory arbitration. The Labour Officer had thirty days to dispose of the matter. It was through the amendment in 2015 that the Labour Officer was now clothed with the power to approach the Labour Court as aforesaid.

After the applicant had referred his dispute, the Labour Officer, for one reason or other, did not dispose of it within the prescribed thirty days. Two months after the expiry of the thirty days, the applicant applied to the Labour Court, asking it to dispose of his appeal in terms of section 93(7) of the Labour Act.

That was in May 2015.

Section 93(7) of the Labour Act is the provision that allows any party to a dispute to approach the Labour Court to dispose of it where a Labour Officer has failed to settle it through conciliation and has issued a Certificate of No Settlement, or has, for any reason, refused to issue such a certificate.

The Labour Court, four months later, referred the matter back to the Labour Officer with instructions to appoint an arbitrator to dispose of the applicant's appeal.

That was in September 2015.

That did not happen, apparently for two reasons:

(i) Firstly, the first respondent was phasing out the system of external arbitrators. As such, the applicant was advised, that, no arbitrator could be appointed in line with the directive from the Labour Court.

(ii) Secondly, the Labour Act had just been amended as aforesaid.

Among others, the said section 93(5a) of the Labour Act had just been inserted. Disputes of right, as opposed to disputes of interest, would now be resolved in accordance with the new provisions. Among other things, once a Labour Officer made a finding of unfair labour practice against an employer, he or she would have to approach the Labour Court for his or her decision to be confirmed.

The matter was referred back to the Labour Court, by a Labour Administration Officer, who requested for directions.

In March 2016, the Labour Court gave such directions.

It directed that the matter was to be heard by a Labour Officer in terms of section 93(5)(c) of the Labour Act. This is the provision that empowers a Labour Officer to find whether or not an employer is guilty of an unfair labour practice. If he or she makes such a finding, he or she can, among other things, order the cessation of the unfair labour practice and direct the payment of moneys and/or damages.

With the newly introduced section 93(5a) of the Labour Act, the Labour Officer is then to approach the Labour Court for confirmation of his or her decision.

The Labour Officer eventually set to hear the matter in line with the directive from the Labour Court.

In May 2016, he gave his ruling. He made a finding that he had no jurisdiction to determine the appeal. His reason was, that, the first time the applicant had referred his appeal to the Labour Officer (in March 2015) he had erred. He said in terms of section 8 of the National Employment Code of Conduct, no appeal lies to the Labour Officer from a decision of a disciplinary authority at the workplace. It is only an appeal, decision, or the conduct of an appeal authority that may be referred to the Labour Officer.

So, in the end, the Labour Officer held, that, he had no jurisdiction to determine the appellant's appeal because it was not an appeal against an appeal decision, but an appeal against the decision of a disciplinary authority in the first instance.

Before this ultimate conclusion, the Labour Officer had made the observation, that, instead of appealing to the Labour Officer in terms of section 8 of the National Employment Code of Conduct, as he had done, the applicant ought to have appealed straight to the Labour Court, allegedly in terms of section 92D of the Labour Act.

Section 92D of the Labour Act is the one that governs appeals to the Labour Court that are not provided for elsewhere in the Labour Act. It says a person who is aggrieved by a determination made under an employment code, may appeal to the Labour Court in the manner and time prescribed.

In September 2016, the Labour Court confirmed the ruling of the Labour Officer.

But, the applicant had applied to that court for condonation for late noting of appeal. Condonation was refused “…, for failure to exhaust local forum.”

The applicant went back to the workplace. He said heeding what the Labour Officer had said about appeals lying to them only from an appeal decision by, or conduct of, an appeals authority of the employer, he filed an appeal to the Appeals Officer/Appeals Committee a day after receiving the Labour Court's decision.

He also sought condonation for the late noting of the appeal. But, without referring it to the Appeals Officer or Committee proper, the employer, through the General Secretary, acting on external legal advice, dismissed the appeal and the request for condonation on the basis that there was no provision for an application for condonation in the National Employment Code of Conduct.

That was in October 2016.

The applicant appealed to the Labour Officer. He lost. The conclusion reached by the employer's General Secretary was upheld.

The Labour Officer took his decision to the Labour Court for confirmation, purportedly in line with the new section 93(5a) of the Labour Act.

The Labour Court declined to do so on the basis, that, the Labour Officer had an inherent power to hear an application for condonation which he should have exercised and that the decision by the employer, which the Labour Officer had wrongly upheld, was irregular in that it had been made by a fellow employee supplanting an Appeals Committee.

The Labour Court referred the matter back to the workplace and directed the employer to set up an appeals structure for the determination of the applicant's appeal within thirty days, or such extended period as might be granted. The Labour Court also directed, that, in the event that the employer failed to hear the appeal as directed, then, the applicant would automatically be reinstated without loss of salary and benefits while the parties might be taking their case to any next level.

That was in May 2017.

The employer was aggrieved by the decision of the Labour Court. It appealed to the Supreme Court. It took a point in limine, that, by section 93(5a) of the Labour Act, only when a Labour Officer has ruled against an employer is he or she required to approach the Labour Court for confirmation of his or her decision, not, as was the case in this matter, where the Labour Officer has ruled against the employee.

The applicant said he conceded the point in limine. He presumed the Supreme Court would uphold it because it had done so in a previous case where the same point had been raised.

The applicant felt he was back to nowhere.

His appeal was never determined on the merits.

He felt the culprit was section 93(5a) of the Labour Act that allows approaches to the Labour Court by a Labour Officer only where he or she rules against the employer, but not where he or she rules against the employee.

The employee who loses before a Labour Officer has nowhere else to go, whereas an employer who loses before the same Labour Officer is actually and automatically guaranteed another hearing before a court.

The applicant also felt, that, the ambiguity brought about by the error in section 8(3) of the National Employment Code of Conduct blocked his right of access to the courts.

He then turned to the High Court for an order of invalidity against the two offending provisions.

Interestingly, in their notice of opposition, the respondents agreed with the applicant in relation to section 93(5a) of the Labour Act. They said:

“Respondent concedes to the challenges against 93(5a) of the Labour Act [Chapter 28:01] as amended and has since sought to repeal the provision in its current Labour Act Amendment Bill. I however deny that section 8(3) of Statutory Instrument 15 of 2006 violates the Applicant's rights for the reasons advanced in my paragraphs 9 and 10.”

But, despite their denial in regards to section 8(3) of the National Employment Code of Conduct, the respondents essentially conceded the error. They said:

“Indeed, the said section makes reference to a section 2 which is not there; but, however, a departure from the ordinary grammatical interpretation of the section will lead to a reasonable conclusion that the section being referred to is section 6.”

Arguing that a diligens paterfamilias applying their mind to the intention of the Legislature would have come to the logical conclusion that section 8(3) of the National Employment Code of Conduct meant to refer to section 6, the respondents said the remedy sought by the applicant was outrageous and should therefore be dismissed with costs.

Justice must not only be done. It must also be seen to be done.

The respondents openly admit inherent problems or errors in pieces of legislation made by, and administered by them.

In relation to section 93(5a) of the Labour Act, the respondents promised repeal. That has not happened.

In relation to section 8(3) of the National Employment Code of Conduct, the respondents expressly admit the error but urge the applicant to resort to some tenet of construction to unravel what they meant to say.

Yet, in his quest for justice, the applicant has, for more than three years, been shunted from pillar to post by the administrative and adjudication structures under their purview. These structures have differed in their interpretation of the impeached provisions.

What is more, as the respondents are mulling getting rid of section 93(5a) of the Labour Act, the Supreme Court, in an unrelated case, the judgment of which was delivered at about the same time the applicant was filing this application with this court, has impugned the provision and urged the Legislature to have a look at it.

This was in Drum City (Pvt) Ltd v Garudzo SC57-18.

The superior court noted, that, section 93(5a) and (5b) of the Labour Act do not empower the Labour Court to confirm a draft ruling of a Labour Officer made against an employee. The employee is excluded from the confirmation proceedings. Yet, he or she has a direct and substantial interest in those proceedings.

He or she has a right to be heard.

The superior court further said, that, a procedure that says a Labour Court can sit for the confirmation or non-confirmation of a ruling by a Labour Officer, in the absence of an employee, who is an interested party, is an irregularity and a travesty of justice.

The court noted a myriad of problems posed by such a procedure, not least:

(i) The fact that even where the ruling by the Labour Officer is in favour of the employee, but is not confirmed by the Labour Court, the employee who is affected by the non-confirmation cannot appeal. Conversely, where the Labour Court confirms the ruling, the employer may wish to appeal to the Supreme Court, but, the employee is necessarily absent. Yet the outcome at the Supreme Court may be adverse to the employee.

(ii) The fact that even where the Labour Court confirms the ruling against the employee and he or she wants to enforce it by execution, the writ cannot be in his or her name because that name appears nowhere in the final orders.

As a way around the absurdities created by section 93(5a) of the Labour Act, the Supreme Court suggested, that, the employee should always be joined as a party to the confirmation proceedings before the Labour Court. However, the superior court also urged the Legislature to seriously reconsider the provision - exactly the same thing the respondents herein have promised they are doing.

Therefore, it seems obvious that section 93(5a) of the Labour Act is impeachable. The respondents concede it. The Supreme Court virtually confirms it.

The question of the declaration of constitutional invalidity of section 93(5a) of the Labour Act and section 8(3) of the National Employment Code of Conduct was not before the Supreme Court.

It is squarely before me now.

I hold that section 93(5a) of the Labour Act is ultra vires section 56(1) and (3) of the Constitution that guarantee the equality of all persons before the law, and the right not to be treated in an unfairly discriminatory manner on the grounds of, inter alia, economic or social status.

It also violates section 68 of the Constitution that guarantees the right to administrative justice that is, inter alia, lawful, efficient, reasonable, impartial and both substantially and procedurally fair.

The applicant says he seeks the declaratur in terms of section 14 of the High Court [Chapter 7:06].

But, in terms of this provision, a declaratur, it is not sought by anyone and anyhow; otherwise, any public busybody or watchdog whose hobby it is to surf the legislative landscape for any statutory provisions mis-aligned with the Constitution would clog the judiciary with endless suits for declarations of constitutional invalidity.

A mover for a declaratory order, under section 14 of the High Court Act, must demonstrate more than mere academic interest. The court does not decide abstract or hypothetical questions: see Adbro Investments Co. Ltd v Minister of the Interior & Ors 1961 (3) SA 283 (T)…, and Johnsen v Agricultural Finance Corp 1995 (1) ZLR 65 (S). He or she must show the existence of some tangible and justifiable advantage to himself.

In terms of section 14 of the High Court Act, a person who qualifies to move for a declaratory order is one who has an interest in having his or her existing, future or contingent right or obligation determined even if he or she cannot claim any relief consequential upon such determination…,.

In the draft order, the applicant does not seek the determination of existing or future or contingent rights. He does not seek determination of any rights at all. His woes with his employer are all in the past now.

I do not underrate them. It is only because he has been importunate that the matter is now before this court.

But, under section 14 of the High Court Act, one does not seek a declaratur for the determination of rights existing in the past.

I am mindful that section 14 of the High Court Act does not require that one who seeks a declaratory order should claim any relief consequent upon the determination by the court. But, at least, he or she must have an existing or future or contingent right that the court should, or will determine.

It seems the undisclosed lawyers handling the applicant behind the scenes eventually wisened up to this pitfall. They filed heads of argument, even though as a “self-actor” the Rules do not require the applicant to file any. In the very last paragraph, it is submitted, that, in addition to the relief sought in terms of the draft order, the applicant should be granted a further remedy as follows:

(i) That, in the case of the impugned section 8(3) of the National Employment Code of Conduct, the applicant should be granted the right to file an appeal against the decision of the disciplinary authority to the internal appeals authority; or

(ii) That, in the case of section 93(5a) of the Labour Act, the applicant should have the right to appeal against the ruling by the Labour Officer to the Labour Court.

I consider that the applicant's request in the heads of argument brings him within the purview of section 14 of the High Court Act. His claim in the draft order ceases to be merely academic.

But, even if I should be wrong on this, I consider that section 85 of the Constitution has widened the scope under which a declaratur may be sought if it is in relation to the enforcement of fundamental human rights and freedoms under Chapter 4 Part 4 of the Constitution.

In this case, the rights the applicant alleges have been infringed in relation to himself fall under this part of the Constitution. They are the right to equal protection before the law and the right not to be discriminated against (section 56 of the Constitution); the right to administrative justice (section 68 of the Constitution) and the right of access to the courts or some other tribunals (section 69 of the Constitution).

Section 85 of the Constitution reads:

“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.”…,.

Thus, a right existing in the past which an applicant can show was infringed in relation to themselves can support a claim for a declaratur.

However, my conclusion above is only in relation to section 93(5a) of the Labour Act.

I am not satisfied that it was really the typing error in section 8(3) of the National Employment Code of Conduct that led the applicant to adopt the course that he did.

Despite that error, it is evident, even as presently worded, that the reference of a matter to a Labour Officer that section 8(3) envisages, is not from a decision of a disciplinary authority at the first instance. It is from a decision or conduct of an Appeals Authority on appeal.

It was wrong for the applicant to invoke section 8(6) of the National Employment Code of Conduct and assume it applied to his case.

In the final analysis, the applicant, having sought no order as to costs, the following order is issued:

1. It is hereby declared that section 93(5a) of the Labour Act [Chapter 28:01] is in conflict with section 56(1) and (3); section 68(1) and section 69(3) of the Constitution of Zimbabwe and is therefore invalid.

2. The declaration of constitutional invalidity in paragraph (1) above may be referred for final determination by the Constitutional Court of Zimbabwe in terms of section 175 of the Constitution and the Rules of that Court.

3. Subject to paragraph (2) above, the applicant is hereby granted the right to appeal to the Labour Court, as soon as practicable, the decision of the Labour Officer/Designated Agent, E Muzvidziwa, Esquire, handed down on 9 December 2016.

4. There shall be no order as to costs.

This is an appeal against the judgment of the High Court handed down on 4 May 2018.

The appellant had, before that court, sought a declarator that the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations 2016 published as Statutory Instrument 117/2017 were null and void and of no force or effect.

The appellant had also sought an order declaring the enabling Act, the Presidential Powers (Temporary Measures) Act [Chapter 10:20] to be inconsistent with the Constitution of Zimbabwe, and, as a consequence, the striking down of that Act.

In the alternative, the appellant sought a declaratur that section 2(2) of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] is inconsistent with the Constitution and that the same be struck down.

After hearing argument from both parties, the High Court dismissed the application with costs. It is against that order that the appellant has now appealed to this Court.

The Presidential Powers (Temporary Measures) Act [Chapter 10:20] (“the Act”) provides as follows in section 2 thereof:

“2. Making of Urgent Regulations

(1) When it appears to the President that:

(a) A situation has arisen, or is likely to arise, which needs to be dealt with urgently in the interest of defence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest; and

(b) The situation cannot adequately be dealt with in terms of any other law; and

(c) Because of the urgency, it is inexpedient to await the passage through Parliament of an Act dealing with the situation; then, subject to the Constitution and this Act, the President may make such regulations as he considers will deal with the situation.

(2) Regulations made in terms of subsection (1) may provide for any matter or thing for which Parliament can make provision in an Act:

Provided that…,. (not relevant).”…,.

Section 5 of the Presidential Powers (Temporary Measures) Act provides:

“Regulations made in terms of section two shall, to the extent of any inconsistency, prevail over any other law to the contrary, apart from regulations that have been made and are in force in terms of the Emergency Powers Act [Chapter 11:04].”

Acting in accordance with the above provisions of the Presidential Powers (Temporary Measures) Act, the President of the Republic of Zimbabwe, who is the respondent in this matter, published, on 15 September 2017, in the Government Gazette Extraordinary, the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, SI117 of 2017 (“the Regulations”). The Regulations sought to amend certain sections of, and the Schedule to, the Electoral Act [Chapter 2:13].

On 20 October 2017, the applicant filed a court application seeking the declarators referred to and an order setting aside both the Presidential Powers (Temporary Measures) Act [Chapter 10:20] and the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117 of 2017.

In his founding affidavit in the court a quo, the appellant, as applicant, stated as follows:

The Presidential Powers (Temporary Measures) Act is unconstitutional because it gives the President of the Republic of Zimbabwe the power to enact Regulations which override existing Acts of Parliament. Nowhere in the Constitution is the President given the power to make law as provided for in the Presidential Powers (Temporary Measures) Act.

Although section 116 of the Constitution states that the Legislature of Zimbabwe consists of Parliament and the President, it is clear that the President is involved only to the extent stipulated in Chapter 6 as read with the Fifth Schedule to the Constitution.

Section 134 of the Constitution makes it clear that Parliament may, in an Act of Parliament, delegate the power to make statutory instruments within the scope of and for purposes laid out in the Presidential Powers (Temporary Measures) Act but in no uncertain terms prohibits the delegation of Parliament's primary law making function.

It was never the intention that delegated legislation could have the effect of altering an existing Act of Parliament.

In terms of section 5 of the Presidential Powers (Temporary Measures) Act, the President has sweeping powers to make laws that transcend existing Acts of Parliament.

For that reason, the applicant sought an order striking down both the Presidential Powers (Temporary Measures) Act [Chapter 10:20] and the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, SI117/2017.

In his opposing affidavit, the respondent stated as follows:

The provisions of the Electoral Act amended by the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117/2017 had not envisaged the use of the biometric voter registration system which requires voters to have fingerprints and photographs taken in addition to filling in forms.

The President accepted, that, in terms of section 2 of the Presidential Powers (Temporary Measures) Act, he can enact laws, but, submitted that any Regulations he makes are subject to scrutiny by Parliament which can resolve either to have them amended or repealed.

Further, and in any event, section 110 of the Constitution gives him the power conferred by the Constitution, an Act of Parliament, or other law, to enable him to exercise his functions as Head of State.

The reference to “other law” includes provisions of the common law, customary law, and international law in force in Zimbabwe.

Under the common law, the President has always enjoyed prerogative powers which entitle him to promulgate temporary legislation in urgent situations. Those prerogative powers have not been abolished under the Constitution and consequently remain at his disposal.

In its determination, the court a quo found, that, in invoking his powers under the Presidential Powers (Temporary Measures) Act, the respondent was not abusing the law-making function conferred upon him by the Act.

The new voters roll could not properly be covered by a law which Parliament would have introduced, debated, and passed into law without interfering with the requisite time lines of the 2018 harmonised elections.

The court a quo accepted, that, the question whether or not the Presidential Powers (Temporary Measures) Act is legal depends on the interpretation of the Constitution.

It found, that, the President's “necessary and unavoidable intrusion into the function of Parliament” is evident from a reading of section 86 of the Constitution.

It further found that “it is only the President who has the power to limit, through the Act, the people of Zimbabwe's fundamental rights and freedoms which are contained in the Constitution”.

The court also found that “because the President's law making power exists in the Act, the drafters of the Constitution did not include it in section 134 of the Constitution” and that “because his powers, as stated in section 86(2)(b) of the Constitution, relate to the limitation of the people of Zimbabwe's fundamental rights and freedoms in certain unforeseen circumstances, he could not effectively exercise the same under section 134 of the Constitution.”

The court consequently dismissed the application with costs.

Unhappy with the dismissal of his application by the court a quo, the appellant noted an appeal to this Court. His grounds of appeal are that:

“1.1 The court a quo erred as a question of law, in upholding the validity of the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations 2016 published in Statutory Instrument 117/2017.

1.2 A fortiori, the court a quo erred in holding that the President could make law.

1.3 In addition, the court a quo erred in failing to hold that the Presidential Powers (Temporary Measures) Act [Chapter 10:20] was an unlawful delegation of legislative power and was therefore ultra vires the Constitution of Zimbabwe.

1.4 In the alternative, the court a quo failed to uphold that section 2(2) of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] was null and void and of no force and effect to the fact that it permitted the making of laws overlooking Parliament.”…,.

In his prayer, he seeks an order setting aside the order of the court a quo, and, in its place, an order granting the relief he had sought before the court a quo.

In his submissions, the appellant states as follows:

Section 86 of the Constitution is just a limitation clause and does not allow the President to limit rights or to be the person who curtails the rights of persons. Section 86 of the Constitution only relates to a law of general application made and passed by Parliament and not by an individual.

The Presidential Powers (Temporary Measures) Act [Chapter 10:20], that is the subject of this appeal, amounts to Parliament outsourcing its original law-making powers.

The function of the President, under section 110 of the Constitution, is not to make law, but, merely to assent to a Bill, and, if he does not agree, to refer the Bill to the Constitutional Court for an opinion on its constitutionality.

He further argues, that, there is a difference between delegating authority to make subordinate legislation within the framework of a statute under which the delegation is made, and assigning primary law making power to another body.

In this case “the President is even higher than Parliament because he can amend what Parliament has done.”

On the remedy, the appellant submits, that, an order should be issued nullifying the Presidential Powers (Temporary Measures) Act [Chapter 10:20].

However, since the retrospective declaration of invalidity might produce significant disruption in the voter registration exercise, the court should make an order that limits the retrospective effect of any such declaration.

He makes it clear, that, he has no difficulty with the substance of the amendments and that the gravamen of his displeasure is the manner in which they were effected.

In his heads of argument, the President states, that, whilst he does not entirely agree with the reasoning of the court a quo, he agrees with the order made.

He submits, as he did before the court a quo, that, the Presidential prerogative is a power that attaches to the President by virtue of his office, and that, under the common law, he has always enjoyed prerogative powers which entitle him to promulgate temporary legislation in urgent situations. Those prerogative powers were never abolished but are now codified under the Presidential Powers (Temporary Measures) Act.

The reference to “other law” in section 110(1) of the Constitution includes, by necessity, the provisions of the common law in force in this country.

Lastly, he maintains, that, as the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117/2017 have to be laid before Parliament for approval, this shows that Parliament, essentially, still retains its primary lawmaking power.

In the course of considering the possible disposition of this matter, a question of law arose, namely, whether the appellant could properly appeal to this Court against a determination of constitutional validity by the court a quo.

Being an important issue that could be dispositive of this matter, and in light of the fact that neither party had hitherto addressed the court on it, this Court asked both parties to file supplementary submissions within a given time frame.

This the parties proceeded to do.

In his supplementary heads of argument, the appellant has submitted, that, where the High Court, as in this case, issues an order of constitutional validity, that determination is subject to an ordinary appeal to this Court. Where, however, the same court issues an order of constitutional invalidity, then, that order must be referred to the Constitutional Court in terms of section 175 of the Constitution.

In other words, in the former case, there is no obligation that the order of constitutional validity be referred to the Constitutional Court for confirmation.

The appellant further submitted, that, in terms of section 43 of the High Court Act [Chapter 7:06], the Supreme Court has an obligation to hear and determine all appeals from the High Court of Zimbabwe, whether in the exercise of its original or appellate jurisdiction.

Further, in terms of section 21 of the Supreme Court Act, the Supreme Court has 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.

In terms of section 22 of the Supreme Court Act, the Supreme Court shall have the power to confirm, vary, amend or set aside the judgment appealed against or give such judgment as the case may require.

There is, therefore, nothing in the High Court Act or Supreme Court Act, so the appellant argues, that takes away the power of the Supreme Court to entertain an appeal from the High Court. The only limitation is in respect of an order of Constitutional invalidity which must be confirmed by the Constitutional Court before it has any effect.

The appellant has further submitted, that, in light of the wording of section 175(3) of the Constitution, any interested person has a right to appeal or apply directly to the Constitutional Court to confirm or vary the order of constitutional validity.

Subsection (3) of section 175 of the Constitution refers to a court order made in terms of subsection (1) of that section, which subsection provides for an order of constitutional invalidity. The reference, in subsection (3), to an order concerning constitutional validity in terms of subsection (1) restricts the meaning of subsection (3) to orders of constitutional invalidity only.

In other words, the right to appeal to the Constitutional Court is restricted by the fact that such a right only applies to an order of constitutional invalidity provided for in subsection (1).

Further, Rule 31 of the Constitutional Court Rules refers to an order of constitutional invalidity and not an order of constitutional validity. The express mention of orders of constitutional invalidity excludes orders of constitutional validity.

In the event that the Supreme Court declares a law to be invalid, then, that order has to be confirmed by the Constitutional Court.

The respondent does not accept the appellant's submissions in this regard and submits that the Supreme Court has no jurisdiction to hear and determine such an appeal, because, in terms of section 175(1) of the Constitution only the Constitutional Court is empowered to confirm or vary an order concerning constitutional validity by any court.

Subsection (3) of section 175 of the Constitution refers to an order concerning constitutional validity by a court in terms of subsection (1). If subsection (1) and (3) of section 175 are read together, it becomes apparent that section 175 of the Constitution refers not only to orders of constitutional invalidity but also orders of constitutional validity.

Only the Constitutional Court is empowered to confirm or vary an order of Constitutional invalidity.

The Supreme Court would be unable to sufficiently deal with the issue of constitutional validity or invalidity of any law and is not in a position to vary or confirm any order concerning constitutional validity of any law. Although the Supreme Court is the final court in non-constitutional matters, it cannot usurp the powers of the Constitutional Court in this regard.

From the foregoing, it seems to me that two broad issues arise for determination before this Court:

(i) The first is whether an order of constitutional validity by the High Court can be appealed against to the Supreme Court rather than directly to the Constitutional Court.

(ii) The second is whether the Presidential Powers (Temporary Measures) Act is consistent with the Constitution of Zimbabwe.

I proceed to deal with these two issues in turn.

The question whether an order of constitutional validity is appealable to the Supreme Court is one of interpretation. To determine the question there is need to look at the provisions of the Constitution that have a bearing on this issue.

One must, I think, start with section 167(3) of the Constitution which states as follows:

“(3) The Constitutional Court makes the final decision whether an Act of Parliament or conduct of the President or Parliament is constitutional and must confirm any order of constitutional invalidity made by another court before that order has any force.”

Section 169(1) of the Constitution, in turn, provides:

“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.”

This is then followed by section 175 of the Constitution which provides, in relevant part, as follows:

“175 POWERS OF COURTS IN CONSTITUTIONAL MATTERS

(1) Where a court makes an order concerning the constitutional invalidity of any law or any conduct of the President or Parliament, the order has no force unless it is confirmed by the Constitutional Court.

(2)…,. (Not relevant)

(3) Any person with a sufficient interest may appeal or apply, directly to the Constitutional Court to confirm or vary an order concerning constitutional validity by a court in terms of subsection (1).

(4)…,. (Not relevant)

(5) An Act of Parliament or rules of court must provide for the reference to the Constitutional Court of an order concerning constitutional invalidity made in terms of subsection (1) by a court other than the Constitutional Court.”

In Mawarire v Mugabe & Ors 2013 (1) ZLR 469, the Constitutional Court of Zimbabwe remarked as follows…,:

“In general, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of statutes.

One must look to the words actually used and deduce what they mean within the context in which they appear: see Hewlett v Minister of Finance 1981 ZLR 571 (S) at 580.

If the words used are precise and unambiguous, then, no more is necessary than to expound them in their natural and ordinary sense: see The Sussex Peerage (1843-1845) 65 RR 11 at 55.

In essence, it is necessary to have regard to the words used and not to depart from their literal and grammatical meaning unless this leads to such an absurdity that the Legislature could not have contemplated it.”

Constitutional interpretation, however, often requires more than simply according words their literal or ordinary grammatical meaning. Various decided cases have also stressed the need for a generous and purposive interpretation to give expression to the underlying values of the Constitution.

In S v Makwanyane 1995 6 BCLR 665 (CC) the Constitutional Court of South Africa also stated, that, the provisions of the Constitution should not be construed in isolation but in their context.

It is permissible to have regard to the purpose and background of the legislation.

The court cited with approval remarks in Jaga v Donges N.O. and Another 1950 (4) SA 653 A…, that:

“Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context.

But, it may be useful to stress two points in relation to the application of this principle.

The first is that 'the context' as here used is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its background.”

A further consideration in the interpretation of a statute is that the legislature is presumed not to intend an absurdity, ambiguity, or repugnancy to arise out of the grammatical and ordinary meaning of the words it uses in an enactment.

Therefore, in order to ascertain the true purpose and intent of the legislature, regard is to be had, not only to the literal meaning of the words, but, also to their practical effect.

In this respect, the words in question must be capable of an interpretation that is consistent with the rest of the instrument in which the words appear.

In interpreting the provisions of the Constitution, it is, as stated, necessary to adopt a broad and generous approach and also to ensure that all the relevant provisions on the subject are considered.

As stated in Attorney-General v Dow (1992) BLR 119 (CA)…,:

“…, the very nature of a Constitution requires that a broad and generous approach be adopted in the interpretation of its provisions; that all the relevant provisions bearing on the subject for interpretation be considered together as a whole in order to effect the objective of the Constitution.”

Indeed, section 46 of our Constitution, which deals with the interpretation of Chapter 4, makes it clear, that, such interpretation must pay due regard to all the provisions of the Constitution, and, in particular, the principles and objectives set out in Chapter 2.

Section 331 of the Constitution, in turn, provides that section 46 of the Constitution applies, with any necessary changes, to the interpretation of the rest of the Constitution.

The Constitutional Court Rules 2016, in Rule 21, make provision for the matters that do not require the leave of the court. These include “appeals in terms of section 175(3) of the Constitution, against an order concerning the constitutional validity or invalidity of any law.”

It is apparent that the framers of the Rules considered that even an order of constitutional validity could be the subject of an appeal directly to the Constitutional Court and that leave to appeal was not necessary in such a case.

One must, I think, accept that the ordinary literal and grammatical interpretation of section 175(1) of the Constitution is that an order concerning the Constitutional invalidity of any law has no force or effect unless confirmed by the Constitutional Court. In my view, such an interpretation is in accord with section 169(3) of the Constitution which makes it clear that the Constitutional Court must confirm any order of constitutional invalidity made by another court before that order has any force.

The real question, as already noted, is: which court should hear and determine an appeal against an order of constitutional validity?

The Constitution has not, itself, stated to which court such an appeal shall lie.

It should also be accepted, that, in general, appeals from the High Court lie with the Supreme Court.

Section 169(3) of the Constitution, however, makes it abundantly clear, that, the Constitutional Court makes the final decision whether an Act of Parliament is constitutional.

It does not state that the Constitutional Court only makes the final decision on whether an Act of Parliament is invalid.

The clear intention that comes out from a careful reading of that section is that it is the Constitutional Court that makes the final decision on whether an Act of Parliament is constitutional or not. That means the Constitutional Court makes the final decision whether an Act of Parliament is valid or not.

In the event that an order of constitutional invalidity is made by a lower court, such an order has no effect until the Constitutional Court has confirmed such invalidity.

Section 175(3) of the Constitution provides, that, an interested person may appeal or apply directly to the Constitutional Court to confirm or vary an order concerning constitutional validity by a court in terms of subsection (1).

Whilst the subsection refers to subsection (1), it also refers to “an order concerning constitutional validity” – and not only constitutional invalidity.

An order concerning constitutional validity is exactly that. It is not limited to orders concerning constitutional invalidity only.

Taken together, therefore, sections 169(3) and 175(3) of the Constitution simply mean that an order of constitutional validity or invalidity may be appealed against directly to the Constitutional Court.

Bearing in mind that only the Constitutional Court makes the final decision on the validity of an Act of Parliament, it could not have been the intention of the legislature that an order concerning constitutional validity be the subject of an appeal to the Supreme Court in the normal way for the reason that the Supreme Court does not make the final decision on whether or not an Act of Parliament is valid.

Only the Constitutional Court has that jurisdiction.

In any event, the submission that an appeal against an order of constitutional validity should lie to the Supreme Court and not the Constitutional Court would result in a patent absurdity.

The Supreme Court is an Appellate Court and does not, itself, deal with matters at first instance. It does not itself declare, at first instance, an Act of Parliament to be valid or invalid.

Its powers, in terms of section 22 of the Supreme Court Act, are to confirm, vary, amend, or substitute the order appealed against. If it amends the order of the lower court, that amended order becomes the order of the lower court. Similarly, where it substitutes an order, that order becomes the order of the lower court.

In this case, the High court made an order that the impugned Act, the Presidential Powers (Temporary Measures) Act, was valid and constitutional.

The appellant wants this order set aside and replaced with an order declaring the Presidential Powers (Temporary Measures) Act unconstitutional.

Assuming, arguendo, that the Supreme Court were to agree with the appellant and grant the order substituting the order of the court a quo with one of constitutional invalidity, the Supreme Court would not itself have the power to refer the order to the Constitutional Court for confirmation. The order substituting the judgment of the High Court with one of invalidity would become a judgment of the High Court itself, to be actioned by that court.

The record would have to be returned to the High Court.

The High Court would, thereafter, refer the order of constitutional invalidity to the Constitutional Court for confirmation.

Such a process would be convoluted and unnecessary. An appeal from an order of constitutional validity directly to the Constitutional Court would resolve the issue of validity or invalidity once and for all.

Subsection (3) of section 175 of the Constitution could have been more elegantly worded to obviate possible confusion as to its interpretation.

It is garbled. Its gibberish.

Taking into account their ordinary signification, the words used in the subsection create uncertainty as to the real intention of the Legislature as regards appeals against orders concerning constitutional validity, which, no doubt, would include both orders of constitutional validity and invalidity.

One can understand a situation where a person with sufficient interest applies directly to the Constitutional Court to confirm an order of constitutional invalidity so that the order has force. It is, however, difficult to imagine an interested person appealing directly to the Constitutional Court to confirm an order, presumably made in its favour.

An interested person would, surely, appeal directly to the Constitutional Court to have an order either of constitutional validity or invalidity set aside and substituted with one to the contrary.

In the final analysis, however, it seems to me that the intention of the legislature was that appeals against both constitutional validity and invalidity be determined by the Constitutional Court, which has the jurisdiction to make the final decision in this regard.

Consequently, the appeal noted to this Court is invalid, and, for that reason, the matter ought to be struck off the roll.

For the sake of clarity, it must be stressed, that, it is the order of constitutional validity or invalidity which may be appealed directly to the Constitutional Court for that court “to confirm or vary” the order.

The right to appeal directly to the Constitutional Court does not apply to orders made in respect of other constitutional matters in which the Constitutional Court exercises concurrent jurisdiction with the other courts established under the Constitution.

In view of the above conclusion, it becomes unnecessary to consider the issue whether or not the Presidential Powers (Temporary Measures) Act is constitutional or not.

The question whether an appeal lies to the Supreme Court from an order of constitutional validity is one that has hitherto not come before this Court. It is a question that was, at worst, moot.

In the circumstances, an order that each party bears its own costs would appear to me to be the most appropriate.

The order of constitutional validity should have been the subject of an appeal directly to the Constitutional Court and not to this Court. The appeal filed with this Court is, therefore, irregular and a nullity. The matter ought therefore to be struck off the roll.

In the result, the following order is made:

The matter is struck off the roll with each party paying its own costs.

This is an opposed application for rescission of judgment which has its genesis in the dismissal of the applicant, Patricia Mapini, from employment by the respondent, Omni Africa.

The applicant was engaged as a Sage Pastel Sales Executive by the respondent.

The working relationship soured when the respondent terminated the applicant's contract of employment on the basis of certain allegations it made against her.

Aggrieved by what she considered to be unfair dismissal, the applicant sought resolution of the matter through compulsory arbitration.

She obtained a default judgment for the sum of US$36,064 on 29 June 2012.

The present application, for rescission, has its foundations in this initial default judgment obtained by the applicant.

Since two different sets of default judgements, one at the instance of the present applicant, and the other at the instance of the respondent, inflame this dispute, it is important to capture the details of both.

Furthermore, in resolving disputes, the devil is often in the factual details ultimately examined against whatever the law provides.

The first default judgement, that resulted in the granting of the arbitral award, was spawned by two postponements of the arbitrator's hearing.

Initially set for hearing on 9 February, the matter could not take place as the arbitrator was away on that day. Further postponed to 15 February, it again still failed to take off on that day: this time, the respondent's lawyer, Mr Mazhande, was unable to attend due to the need to attend a funeral. He, however, requested a representative from another law firm to inform the arbitrator. The evidence on file suggests that this was duly done.

The papers filed of record further reveal, that, the arbitrator, after receiving word from the emissary, dutifully postponed the matter to 21 February. This was by written notice to both the applicant and the respondent.

The information in the papers placed before the court, in addition, confirms that the respondent's receptionist signed and received the notification of this new date, on 16 February.

Nonetheless, on the re-appointed day, February 21, the respondent did not show up which resulted in the granting of a default judgement by the arbitrator in favour of the applicant.

This judgement was subsequently finalised on 29 June.

The evidence, placed before the Honourable Court, also shows, that, in carrying out the necessary processes for the finalisation of the award, the respondent was accordingly notified at every stage. The applicant proceeded to register the arbitration award on 6 July 2012. The registration was granted on 4 December 2012.

It is against this order that the High Court issued a writ of execution on 29 January 2013.

This has also spawned yet a pending matter of stay of execution.

Parallel to the above processes, the respondent, who had not been present at the hearing on 21 February, filed an application, on 1 October 2012, in terms of Article 34 of the Arbitration Act [Chapter 7:15] seeking the setting aside of the arbitral award which was granted on 29 June 2012.

The respondent's primary argument was that the award made by the arbitrator, in its absence, violated the dictates of natural justice in that it had not been granted a hearing.

The respondent succeeded in setting aside the arbitral award.

This was not on the basis of consideration of any merits, but, as a result of a default judgement granted in an unopposed matter.

It appears that the applicant did respond to the application on the 18th of October (also confirmed by stamped documents in file HC/11439/12) attaching documents challenging the respondent's averment of lack of notification.

However, she sent her documents to the respondent's previous lawyers, Muchandibaya and Associates.

These lawyers had indeed, at some stage, as evidenced by correspondence, represented the respondent in the matter.

There is some dispute as to when exactly they assumed agency. No record was on file regarding this aspect.

They were, however, no longer acting for the respondent at the time of the application for rescission as the application was issued by Mawere and Sibanda Legal Practitioners.

A default judgment was granted on 21 November 2012.

It is this default judgement that the applicant seeks to rescind.

The applicant states, that, she only got to know of the default judgement on 15 July 2013. This was after she was served with an urgent chamber application for stay of execution. She filed her application for rescission on 23 July 2013.

She avers, in support of her application for rescission, that, she was unaware, at the time, that, the respondent had since changed practitioners.

She also disputes, that, the respondent was not aware of the arbitration award until its registration on the basis, that, the evidence from process shows, that, the respondent was informed at all times and generally chose to ignore correspondence.

The applicant also challenges the setting aside of the arbitral award on the grounds that the High Court lacked the necessary jurisdiction to hear this matter.

She maintains, that, the setting aside of an arbitral award is the exclusive jurisdiction of the Labour Court in terms of the Labour Act [Chapter 28:01].

Reference was made to several judgements which I will canvass more fully later in this judgement in addressing this issue.

The respondent opposes the application for rescission on the basis that none of the acceptable grounds for rescission are met by the applicant.

These include:
(i) A reasonable explanation for the default;
(ii) The bona fides of the application to rescind; and
(iii) The bona fides of the defence to the claim, which must have some prospect of success at the trial.

Cases referred to include Stockhill v Griffiths 1992 (1) ZLR 172 (S); Rolland and Anor v Donell 1986 (2) ZLR 216 (S); Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 201 (S); and Barclays Bank of Zimbabwe v CC International (Pvt) Ltd SC16-86.

Counsel for the respondent also argued, that, the applicant has to bear responsibility for not being vigilant: see Ndebele v Ncube 1992 (1) ZLR 288 (S).

The applicant's reasons for her default HC/11439/12 are credible.

Order 2 Rule 5(2) of the High Court Rules requires a party who has changed legal practitioners to file a Notice of Change with the Registrar and to advise all other parties to the proceedings of the change.

It is unreasonable, and most certainly irregular, to simply expect that the applicant should have picked the change of address from the fact that the application came from Mawere and Sibanda Legal Practitioners.

There is nothing on record that shows that the applicant was advised of the sea of changes in practitioners representing the respondent at various turns - these include the take over from Mr Mazhande who is said to have been unable to attend the hearing on 15 February by Muchandibaya and Associates who subsequently came into the picture sometime thereafter.

Then, there is the notification of the takeover by Mawere and Sibanda from Muchandibaya and Associates, the respondent's current practitioners, that is also not on file.

In the result, the applicant assumed, albeit, erroneously, that, Muchandibaya and Associates were still handling the matter.

Her opposition did not find its way to Mawere and Sibanda and the matter was heard as unopposed.

Once she got knowledge of the judgement, she acted swiftly to seek its rescission.

I find that the default was not wilful and that the applicant is bona fide in her application to rescind.

On the bona fides of the applicant's defence to the claim, and whether it has some prospects of success if the matter is rescinded, again, I find that the weight of the evidence appears to favour her claim.

The basis of the respondent's application against which rescission is sought, was that it had not been accorded a right to be heard.

As I have earlier remarked, this is not supported by the papers placed before the court since the arbitrator put the postponement in writing. The notice was received and signed for at the respondent's offices.

The applicant, in my view, has some prospects of success in challenging the respondent's claim.

I proceeded, in my analysis of this application, on the basis, that, the matter against which rescission is sought was properly brought before the High Court by the respondent.

The applicant, in her heads of argument, also argued, that, the primary matter had been improperly brought before this court.

The crux of her averment is that the proper forum for an application to set aside an arbitration award is the Labour Court.

Indeed, various decisions of this court have canvassed the increased jurisdictional issues as well as the specialist nature and positioning of the Labour Court in labour matters in relation to the High Court. This followed, in particular, amendments to the Labour Act such as No.17 of 2002 and Amendment No.7 of 2005: see Tuso v City of Harare 2004 (1) ZLR 1 (H); Zimtrade v Makaya 2005 (1) ZLR 427; Delta Corporation t/a Delta Beverages v Lovett Mabhumbo HB34-07; Dlodlo v Deputy Sherriff of Marondera & Ors HH76-11; Benson Samudzimu v Dairiboard Holdings HH204-10.

Where specific statutes apportion responsibility and authority for hearing certain matters, it is indeed vital, for the swift administration of justice, that the jurisdiction accorded any specific courts be recognised, respected, and enforced.

Clarity on the part of the legislature, in according such jurisdiction, is equally important as its absence can result in overlapping jurisdiction.

A key issue in this regard is whether the jurisdiction of the High Court, pertaining to setting aside arbitration awards in labour matters, is now indisputably the strict preserve of the Labour Court or whether the High Court maintains its jurisdiction.

This issue arises in light of the wording of the applicable provision that deals with this issue.

The relevant provisions of Article 34 of the Unicitral Model Law, Arbitration Act [Chapter 7:15] upon which the respondent brought the matter to the High Court reads as follows:

“Application for setting aside as exclusive recourse against arbitral award

(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of this Article.

(2) An arbitral award may be set aside by the High Court only if…,;

(i)…,.

(ii) The party making the application was not given proper notice of the appointment of the arbitrator or the arbitral proceedings or was otherwise unable to present his case; or

(iii)…,.

…,.

…,.

…,.

(4) For the avoidance of doubt, and without limiting the generality of paragraph (2)(b)(ii) of this article, it is declared, that, an award is in conflict with the public policy of Zimbabwe if –

(a)…,.

(b) A breach of the rules of natural justice occurred in connection with the making of the award.”

Section 5(2) of the Arbitration Act [Chapter 7:15], which addresses the application of the Arbitration Act under other enactments is also vital. It is couched as follows:

(2) Where an enactment provides for the determination of any matter by arbitration, the provisions of that enactment, to the extent that they are inconsistent with this Act, shall prevail.”

The provisions of Article 34 of the Unicitral Model Law, Arbitration Act have found specific commentary in case law.

For instance, CHIWESHE JP, in the case of Benson Samudzimu v Dairiboard Holdings HH204-10 remarked as follows with specific reference to Article 34 and 36 of the Arbitration Act:

“I agree with the applicant, that, the correct interpretation would be, that, with regards the law, the Labour Act takes precedence over the Arbitration Act or any other enactment.

The intention of the legislature was to have all labour matters initiated and resolved to finality in terms of the Labour Act.

Equally, the legislature must have intended that such matters be dealt with by the Labour Court to the exclusion of any other court.

Sections 34 and 36 of the Arbitration Act are not applicable in cases where the award sought to be challenged is a labour dispute. The mechanisms for challenging awards are provided for in the Labour Act and may be accessed through the medium of the Labour Court. No other court has jurisdiction to entertain such matters.”

This approach towards interpreting the enhanced powers of the Labour Court, occasioned by legislative intervention, helps to streamline and direct labour matters towards this court.

However, Article 34 of the Arbitration Act still specifically mentions the High Court in no uncertain terms as the forum for applying for the setting aside of an arbitral award.

The purported ouster of the High Court's jurisdiction, in labour matters, while the provision remains couched as it is, is doubtful.

In my view, there is no inconsistency between the jurisdictional provisions of the Labour Act, on issues relating to arbitration, and the provisions of Article 34 of the Arbitration Act that would justify the invocation of section 5 of the Arbitration Act.

I say this because the issues envisaged in Article 34 of the Arbitration Act, for setting aside an award, are not dealt with elsewhere in the Labour Act.

Indeed, it is for this reason, that, MUNYARADZI GWISAI, a labour scholar, attempts to argue at p234 of his book on Labour Law in Zimbabwe that appeals on questions of law, as stipulated in section 98(10) of the Labour Act, encompass the kind of issues envisaged by Article 34 of the Arbitration Act: see Munyaradzi Gwisai, Labour and Employment Law in Zimbabwe: Relations of Work under Neo Colonial Capitalism (Harare: Zimbabwe Labour Centre and Institute of Commercial Law, UZ 2006).

To quote him:

“Where the making of an award is in violation of grounds specified under Article 34 of the Model Law, discussed above, such violation qualifies the appeal as being on a question of law.”

The essence of his interpretation is that it is to the Labour Court, under appeals on question of law, that any matter relating to the award under Article 34 should be brought.

In my view, such an interpretation, while clearly recognising the specialist role of the Labour Court, is nonetheless a contortionist way of locating jurisdiction within the Labour Court for setting aside arbitral awards.

Given its specific wording, and in the absence of a specific ouster through an amendment clarifying the non-application of Article 34 of the Abitration Act to labour matters, the jurisdiction of the High Court, in such issues, cannot be said to have been ousted.

There is nothing that stops the legislature from effecting the desired clarity in the interests of the smooth administration of justice in labour matters if indeed its intention was, and is, to exclude these from the ambit of the provision of Article 34 of the Arbitration Act in favour of the Labour Court: see De Wet v Deetlefs 1928 AD 286…, where SOLOMON CJ remarked as follows:

“It is well a recognised rule in the interpretation of statutes, that, in order to oust the jurisdiction of a court of law, it must be clear that such was the intention of the legislature.”

Pending such clarity to the application of Article 34 of the Arbitration Act, in labour matters, litigants, such as the respondent, who have sought audience in the High Court to set aside an arbitral award cannot be said to be accidental, unwelcome visitors.

In the result, I therefore make the following order:

1. The judgement of this Honourable Court under case No. HC11439/12 be and is hereby rescinded.

2. There is no order as to costs.

This is an income tax appeal filed in the High Court in terms of section 65 of the Income Tax Act [Chapter 23:06].

The two questions for determination are:

(i) Whether the appeal is valid; and

(ii) Whether the commission paid to two foreign agents for facilitating the sale of tobacco constituted fees for services of a technical, managerial, administrative or consultative nature as contemplated by section 30 of the of the Income Tax Act and the Seventeenth Schedule to the Income Tax Act.

The appellant, an exporter and seller of processed tobacco from Zimbabwe, is a locally registered company. It entered into two successive sales and marketing agreements with two foreign companies on 1 April 2004 (annexure 1 of respondent's case and p1-2 of appellant's bundle) and 1 April 2011 (annexure 2 of respondent's case and p3-4 of appellant's bundle) respectively, for the sale of export tobacco in foreign markets.

The sales were on commission of 7.5% of the aggregate net export sales and FCA Zimbabwe sales value of each export, respectively.

In 2007, the respondent audited the affairs of the appellant. It decided that the commission paid for the period to 2005 constituted fees for services of a technical and administrative nature performed by the overseas agent on behalf of the appellant for which the appellant was liable for withholding non-resident tax in terms of the Seventeenth Schedule to the Income Tax Act.

On 5 April 2007, the respondent submitted schedules showing the appellant's withholding tax liability on the tobacco sales commissions payable to the overseas agent.

The tax adviser of the appellant objected to the schedules and imposition of withholding tax on the sales commissions.

On 10 August 2007, the respondent disallowed the objection.

A notice of appeal was filed on 24 August 2007.

The appellant's case was not filed within 60 days of the service of the notice of appeal or at all. In accordance with the provisions of section 65(3) of the Income Tax Act, the appeal lapsed.

The appellant continued to remit non-residents withholding tax to the respondent until the advent of the multi-currency era.

On 24 October 2013, officials of the respondent conducted a routine audit visit at the premises of the appellant during which the Finance Director of the appellant indicated that further remittals had stopped in consequence of the unresolved 2007 appeal.

In a further meeting of 5 December 2013, the appellant requested and was provided with a schedule of the non-residents tax on fees payable from January 2009 to October 2013.

The schedules consisted of 11 columns showing the period covered, the amount of commission paid, the withholding tax rate, the witholding tax due, the penalty charged at 100%, the period covered in respect of interest computation, the period of delay in paying, the interest rate, and the amount of tax due.

The principal amount of the non-residents tax on fees due was in the sum of US$4,252,647=57. An equivalent amount was imposed as penalty and a further US$795,988=62 was imposed as interest.

The penalties were later reduced by half leaving the revised total liability of US$5,974,959=97.

The appellant responded to the schedule by way of the objection letter dated 10 December 2013, which was served on the respondent on the same day.

It disputed that the commissions constituted the fees contemplated in section 30 and the Seventeenth Schedule of the Income Tax Act. It undertook to pay the outstanding principal amount in four instalments between 13 December and 20 January 2014. In consequence of the undertaking, the respondent further waived the reduced penalty and interest by e-mail of 19 December 2013.

The appellant, however, paid the principal amount by 20 December 2013.

A meeting was held between the appellant's tax advisers and the respondent on 13 December 2013. The parties appeared to have agreed, in that meeting, that, the objection had been improperly made.

However, the appellant filed a notice of appeal on 25 March 2014 and served it on the respondent on the following day. The appeal was based on the deemed decision arising from the failure to respond to the letter of objection within three months as contemplated by section 62(4) of the Income Tax Act. The parties filed their respective cases on 28 May 2014 and 13 August 2014....,.

The facts in this matter are derived from the pleadings, the Rule 11 documents, and the appellant's bundle. Both the appellant and the respondent did not call any oral evidence.

The facts were as follows:

The appellant company executed two successive "Sales and Marketing Commission Agreements" with two foreign companies domiciled in Bermuda and Switzerland, respectively. The appellant was identified, in both Agreements, as the "Principal" while the two were specifically termed agents.

In the first agreement, the appellant was represented by its Managing Director and Finance Director while the agent was represented by its Management Committee member and secretary. In the second, the parties were represented by their respective Managing Director and President.

Except for the first two declarations in the preamble and the initial rate of commission in the first agreement, all the other terms of the two agreements were similar.

In terms of clause 6 of the agreements:

"…, the validity, interpretation and enforcement of the agreement shall be governed by the laws of Zimbabwe."

The preamble proclaimed that the agent had "demonstrated expertise in the international marketing and trading of leaf tobacco enabling it to provide such services with greater efficiency and lower costs" and was willing to utilize its sales and marketing capacity and render services on behalf of the appellant.

Four duties of the agent were set out in clause 1:

(i) The agent undertook to use its "best efforts" to help the principal in the export sale of leaf tobacco without incurring financial responsibility or obligations even where it did not disclose that it was an agent of the appellant;

(ii) The agent also undertook to promote the export sales by the appellant in all major markets based on prices and conditions set by the appellant;

(iii) It undertook to maintain and safeguard the quality of the product and image of the appellant; and

(iv) To supply personnel and materials necessary for the promotion of the appellant's exports.

In addition, the agreements authorised the agents to inform the appropriate local authorities in those export countries, where necessary, that it was the sales and marketing agent representing the principal's business interests for the sale of leaf tobacco exported from Zimbabwe.

The commissions under the first agreement were initially equal to 8.5% of the aggregate net sales from the export tobacco of the principal for each statutory year ending 31 March during the term of the agreement but was reduced to 7.5% in November 2005 to comply with the Zimbabwe Exchange Control approval.

Under the second agreement, the agent was paid commission of 7.5% of the Foreign Currency Account Zimbabwe sales value of each export of the principal during the term of the agreement.

Both the aggregate net sales and the FCA Zimbabwe sales value for exports were computed by deducting freight costs to the destination port from the gross invoice value CIF port of destination. These amounts were captured in the CD1 Form as gross FCA value.

The commissions payable were approved by the Exchange Control Authority.

In terms of paragraph 2 and 3 of the Exchange Control Authority, dated 1 February 2012, the authority was granted on condition the 7.5% commission, as well as value addition, would be declared on all the relevant Form CD1 prior to the export and "payment of the commission shall be from the appellant's local FCA".

The provisions of the sales agreement constituted the entire agreement between the parties.

It was certainly not a term of the agreement that the agents would deduct commission before remitting the balance into the FCA account of the appellant.

The suggestion, in the pleadings, that it was in the agreement was contrived.

A meeting was held, on 18 July 2013, at the premises of the appellant, between the appellant and the respondent.

As a result, the appellant wrote the letter of 30 July 2013 in which it set out the duties of the agent in detail.

The agent accompanied a major tobacco buyer and took part in price negotiations in Zimbabwe with the appellant. Other customers did not purchase their tobacco requirements in Zimbabwe. They were first supplied with samples of the available export tobacco before placing their orders. The customers assessed the colour and appearance (the styles) and the sugar and nicotine levels, texture and quality (the smoking characteristics) of the export tobacco.

Generally, price negotiations and marketing logistics for these customers were held outside Zimbabwe by the agent.

The shipping mandate was the final responsibility of the Sales Administration Director. The invoice papers of all export sales from the appellant flowed through the agent.

The agent's main function was to establish and maintain customer relationships on a global scale.

In the letter of 30 July 2013, the appellant listed eight functions of the agent.

The agent interacted with international customers by phone, e-mail, and visits and conducted reviews of previous purchases and deliveries and projected order indications of the new season. In addition, it arranged customer samples and volumes and assessed the price expectations of each customer and followed up customers shipping arrangements. All shipping documents were sent to the agent for processing. The agent also invoiced the customers, collected payments, and retained the commissions.

The appellant's bundle contains the kind of documentation handled by the agent during the process of facilitating and making a sale. They show that the agent played a major role in selling the export tobacco.

The appellant contended, that, as the commissions were not fees, as defined in the Seventeenth Schedule of the Income Tax Act, it had no obligation to withhold non-residents tax.

In addition, the appellant further contended, that, as the commissions were deducted by the agents from the gross foreign currency account value outside Zimbabwe, before the balance was remitted to its account, it could not have withheld any non-residents tax nor would it have been obliged to remit any such tax to the respondent.

The respondent contended, that, the commissions were fees, as defined, and that the appellant, as the principal, was obliged to withhold and remit the non-residents tax on fees due to the respondent.

The issues for determination are:

(i) Whether the commissions constituted fees as defined in the Seventeenth Schedule that were chargeable, leviable, and collectable under section 30 of the Income Tax Act?

(ii) Whether the appellant was liable for withholding and remittal of non-residents tax on fees arising from the deduction of these commissions outside Zimbabwe before any proceeds of the sales had been remitted to it?

The relevant tax is imposed by section 30 of the Income Tax Act which reads:

"30 Non-residents Tax on Fees

There shall be charged, levied, and collected throughout Zimbabwe for the benefit of the Consolidated Revenue Fund a non-residents tax on fees in accordance with the provisions of the Seventeenth Schedule at the rate of tax fixed from time to time in the charging Act."

The Seventeenth Schedule of the Income Tax Act defines fees, foreign company, non-resident person, payee, and payer in paragraph 1(1) in the following manner:

"1(1) In this Schedule, subject to subparagraph (2) —

'fees' means any amount from a source within Zimbabwe payable in respect of any services of a technical, managerial, administrative or consultative nature, but does not include any such amount payable in respect of — (none of the 8 apply herein)

'foreign company' means a body corporate that is incorporated in a state or territory other than Zimbabwe under the laws of that state or territory;

'Non-resident person' means -

(b) A partnership or foreign company which is not ordinarily resident in Zimbabwe;

'payee' means a non-resident person to whom fees are payable or paid;

'payer' means any person who or partnership which pays or is responsible for the payment of fees…,.”

The non-residents tax is imposed on the agents.

The first agent was resident in Bermuda and the second in Switzerland. The two agents were foreign companies and non resident persons as defined in paragraph 1(1) and (1)(b) of the Seventeenth Schedule.

The two agents would also be payees, if the commissions constituted fees payable or paid.

Again, in the event that the commissions were fees, as defined, the appellant would be a payer, defined "as any person who…, pays or is responsible for the payment of fees."

A positive duty to withold such tax is thrust upon the payer by paragraph 2(1) of the Seventeenth Schedule of the Income Tax Act. It reads:

"2(1) Every payer of fees to a non-resident person shall withhold non-residents tax on fees from those fees and shall pay the amount withheld to the Commissioner within ten days of the date of payment or within such further time as the Commissioner may for good cause allow."

Such a payer is mandated, in subsection (2) of paragraph 2, to furnish the payee with a certificate showing the amount of fees paid and the amount of non-residents tax on fees deducted and kept back. A payee who fails to furnish such a certificate, or who furnishes an inaccurate certificate, is liable to suffer the criminal sanctions set out in paragraph 2(3) of the Schedule.

The duties and responsibilities of the payer, and the resultant sanctions stipulated in paragraph 2 above, apply in equal measure in terms of paragraph 3(1)(2) and (2a) of the same Schedule to an agent who receives the gross fees due to the payee from the payer.

In terms of sub-paragraph (3), the agent is deemed to be an agent of the payee if the payer records its address as the address of the payee and delivers the fees to that address. The agent is treated, under subparagraph (4), as an agent of a taxpayer who is absent from Zimbabwe.

It is apparent from the provisions of paragraph 6 of the Seventeenth Schedule that the agent contemplated by paragraph 3(3) and (4) of the same Schedule is one who is in Zimbabwe.

In terms of paragraph 5, the payer or agent attaches a prescribed form to the payment of the fees.

In terms of paragraph 6(1), a payer or agent who fails to withhold or pay the prescribed tax to the Commissioner, under paragraph 2 or 3, is personally liable for the payment not later than 10 days from the period that the actual amount was due and to an additional equivalent amount of such tax.

Counsel for the appellant listed six (6) other instances in the Income Tax Act where Parliament thrust a similar duty on a payer to withhold tax from a third party and remit it to the statutory tax collecting body.

He correctly submitted, that, the resident payer had no obligation to pay the non-resident tax unless it failed to deduct and keep back the tax from the fees paid or from the fees payable.

Counsel for the appellant submitted, that, paragraph 6 of the Schedule did not create a tax liability for a resident taxpayer, rather, it created a penalty for the resident taxpayer.

He suggested, that, the heading of the section be amended to reflect that it was a penalty for failure to withhold non-residents tax. He based his submission on the well-recognised and established common law principle that the Commissioner is not accorded any legal right to waive taxes.

I agree that the Commissioner is not accorded the legal right to waive taxes: see Foroma v Minister of Public Construction and National Housing and Anor 1997 (1) ZLR 447 (H)…,.; Ritch & Bhyat v Union Government (Minister of Justice) 1912 AD 719…,.; and SAR & H v Transvaal Consolidated Land & Exploration Co. Ltd 1961 (2) SA 467…,.

The Commissioner is only accorded the power to waive the equivalent penalty imposed under paragraph 6(1)(a). He cannot waive the amount of tax not withheld.

The logical conclusion of the argument by counsel, arising from such an inability to waive the tax not withheld, would be that this paragraph creates a tax liability and not a penalty for the appellant.

In my view, Parliament imposed a tax on the resident who failed to withhold the non-resident tax on fees. Paragraph 6(1)(a) therefore created a tax payable by the appellant if it is found that it failed to withhold the contemplated tax.

In this vein, counsel contended, in paragraph 13 of his written submissions, that:

"The resident becomes personally liable for the payment of the tax only if he, she, or it fails to withhold the tax from the fees payable, in the sense, that, he could do so and did not withhold the tax or thereafter failed to remit the tax so withheld to the Commissioner. But, in normal circumstances, the local resident is not the taxpayer in terms of section 30."

The word 'withhold' is defined in the Shorter Oxford English Dictionary as "to keep from doing something, to hold back, restrain, refrain from, to keep back, to keep in one's possession what belongs to or is due to."

I would accept the word "to keep back" as the best possible meaning of the word in the context of the provision.

I turn to determine whether the commissions constituted fees as defined in the Seventeenth Schedule of the Income Tax Act.

I dealt with a similar question in G Bank Zimbabwe Ltd v Zimbabwe Revenue Authority HH207-15. The facts in that case are distinguishable with those in the present case in two material respects:

(i) In that case, the appellant used the term bank charges interchangeably with bank fees, while, in the present matter, the appellant used the term "commissions" for the contract payments that it was obliged to pay.

(ii) Again, G Bank admitted paying the charges directly to the foreign banks while in the instant case the appellant disputed making any direct payments.

At paragraph 109 [p29-30 of the cyclostyled judgment] I said:

"Mr de Bourbon submitted, that, the Nostro bank charges were not subject to withholding tax as they did not fall under any one of the four categories of technical, administrative, managerial or consultative.

It seems to me that the four categories in question are merely adjectives which describe a particular activity.

According to the Shorter Oxford English Dictionary 'administer' means inter alia 'to manage'; 'to handle'; while 'administrative' is defined as 'pertaining to management.'

One of the many permutations of 'to manage' is 'to deal with carefully'. Like McDONALD JP in Commissioner of Taxes v 1 supra at 115F, where he was of course referring to 'transaction, operation or scheme' I would agree that each of the words 'technical, managerial, administrative and consultative' that is used in the para under consideration is of wide and general import and there are a few activities of a taxpayer which will not be appropriately described by one or other of them.”

Counsel for the appellant vigorously attacked my finding, that, the four categories in the definition of fees are of wide and general application and suffice to cover almost every activity undertaken by a taxpayer.

My finding was based on the meaning I ascribed to the ordinary grammatical meaning of the adjectives "technical, managerial, administrative or consultative".

The Income Tax Act itself does not define any of these words.

The established position in Zimbabwe is to adopt the ordinary, literal, and grammatical meaning of words unless doing so leads to glaring absurdity or to results which Parliament would never have intended (per GARWE J…, in Mashamhanda v Mpofu 1999 (1) ZLR 1…, and CHATIKOBO J in Expedite Haulage (Pvt) Ltd v Scotfin Ltd 2000 (2) ZLR 113 (H)…,.

See also Madoda v Tanganda Tea Company 1999 (1) ZLR 374 (S)…,. and the cases cited thereat.

In doing so, the Court must be mindful of the words of WESSELS AJA…, in Stellenbosch Farmers Winery Ltd v Distillers Corp (SA) Ltd 1962 (1) SA 458 (A)…, on the importance of the textual context in which words sought to be interpreted are found, that:

“In my opinion, it is the duty of the court to read the section of the Act which requires interpretation sensibly, i.e. with due regard, on the one hand, to the meaning or meanings which permitted grammatical usage assigns to the words used in the section in question, and, on the other hand, to the contextual scene, which involves consideration of the language of the rest of the statute as well as the matter of the statute, its apparent scope and purpose, and, within limits, its background.”

See also the sentiments of CHEDA J in Sunfresh Enterprises (Pvt) Ltd v Zimra 2004 (1) ZLR 506 (H)…,.

Counsel for the appellant contended, that, our established position is better expressed by WALLIS JA in Natal Joint Municipal Pension v Endumeni Municipality 2012 (4) SA 593 (SCA)…, in these words:

"The present state of the law can be expressed as follows:

Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence.

Whatever the nature of the document, consideration must be given to the language used in the light of ordinary rules of grammar and syntax; the context in which the provision appears, the apparent purpose to which it is directed and the material known to those responsible for its production.

Where more than one meaning is possible, each possibility must be weighed in the light of all these factors.

The process is objective not subjective.

A sensible meaning is to be preferred to one that leads to insensible or un-businesslike results or undermine the apparent purpose of the document. Judges must be alert to and guard against the temptation to substitute what they regard as reasonable, sensible or businesslike for the actual words used. To do so, in regard to a statute or statutory instrument, is to cross the divide between interpretation and legislation; in a contractual context, it is to make a contract for the parties other than the one they in fact made.

The inevitable point of departure is the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document."…,.

Again, the same learned judge of appeal emphasised, in Firstrand Bank Ltd v Land and Agricultural Development Bank of South Africa 2015 (1) SA 38 (SCA)…, that:

"The process of interpretation is no longer one in which we seek out a notional plain meaning of the words used, ignoring context and the circumstances in which the document being interpreted, whether a contract or a statute or a patent specification, came into being. Nonetheless, it must start with the actual words used."

It seems to me, that, barring the semantics used, the formulation advanced by WALLIS JA is not different from the approach followed in Zimbabwe. A court is not concerned with the notional meaning but with the practical application of the principles that emerge from the formulation.

I proceed to deal with the essential requirements of fees as defined.

Before I do so, I emphasize, that, what constitutes fees is defined; therefore, all reference by counsel for the appellant, in oral argument, to the perceived notional meanings of 'fees' with reference to advocates and 'commissions' by reference to commodity brokers is of no significance.

The meaning of fees, in the present case, is delineated by the definition in the Seventeenth Schedule of the Income Tax Act.

The first amount is defined in section 2 of the Income Tax Act, in relation to the determination of gross income, income, and taxable income in terms of section 8(1) as "money or any other property, corporeal or incorporeal property having an ascertainable money value".

The commissions would constitute part of the gross income of the agents.

It was common cause that the amount was received by or accrued to or was in favour of the agents from a source deemed to be within Zimbabwe by virtue of paragraph 1(2)(a) of the Seventeenth Schedule of the Income Tax Act. It reads:

"(2) For the purposes of this Schedule —

(a) Fees shall be deemed to be from a source within Zimbabwe if the payer is a person who…, is ordinarily resident in Zimbabwe;"

The appellant was, at all material times, ordinarily resident in Zimbabwe.

Counsel for the appellant made a conditional concession, that, if the commissions were found to constitute fees, then, they would be deemed to have been from a source within Zimbabwe. He contended that the agent, and not the appellant, was the payer.

The word payable connotes a payment that is due, which ordinarily arises from an unconditional obligation on the payer to pay: see Edgar Stores Ltd v Commissioner for Inland Revenue 1988 (3) SA 876 (A) at 889A-C; 50 SATC 81 (A) and ITC 1587 (1994) SATC 197 at 103-104.

The sales commission and marketing agreements, in clause 2, imposed such an unconditional obligation to pay on the appellant. The responsibility of paying the commissions was imposed on the appellant by the agreements and by the Exchange Control Authority.

Payer is defined as "any person who pays…, or is responsible for the payment of fees."

In my view, a payer could be one of two persons, between the one who actually pays and the one who has the unconditional obligation to pay.

Thus, while on the contention of the appellant, that the agent paid itself, I would find that the person who was responsible for the payment of the fees was the appellant. If the commissions constitute fees, I would therefore find the appellant to have been the payer.

The starting point is that the four categories of services are disjunctive rather than conjunctive.

A finding that the physical activities of the agents fell into any one of these categories would suffice to found liability for the payment of non-residents tax on each category.

It was common cause that the agents supplied a service to the appellant. The appellant and the agents termed the service a sales and marketing of export leaf tobacco service.

The physical activities carried out by the agents, on behalf of the appellant, were first outlined in the minutes of 18 July 2013 whose accuracy was confirmed by the signatures of both parties on 6 and 7 August 2013. These activities were further listed in the letter of the appellant to the respondent of 30 July 2013.

The sales and marketing of export leaf tobacco involved negotiating prices with foreign purchasers. There were two types of foreign purchasers:

(i) The first was the major purchaser from the Far East, which accounted for between 40 and 50% by volume and between 50 and 60% by value of the appellant's exports.

The purchaser in question negotiated with the appellant in Zimbabwe. The tone of the minutes indicated that these meetings were facilitated and co-ordinated by the agent. While the directors of the appellant had the final say on the prices and volumes allocated to the major purchaser, the agent played a prominent role in the negotiations. In terms of the sales and marketing agreement the agent assisted the appellant by exerting its best efforts and demonstrated expertise in international marketing and trading of the export leaf tobacco.

(ii) The second type of buyer was the one who did not come to Zimbabwe to negotiate and assess the packed tobacco.

This type of buyer requested a sample of the tobacco on sale. The "price negotiations and other marketing logistics" for this buyer were done by the agent.

The four adjectives that describe the nature of fees are not defined in the Income Tax Act.

WALLIS JA recognised, in both Natal Joint Municipal Pension v Endumeni Municipality 2012 (4) SA 593 (SCA) and Firstrand Bank Ltd v Land and Agricultural Development Bank of South Africa 2015 (1) SA 38 (SCA), the primacy of the actual words used in the statute.

The appellant did not refer to any dictionary for the meanings of each of these four words. The respondent referred to the Oxford Advanced Learner's Dictionary. I relied on the Shorter Oxford English Dictionary.

Counsel for the appellant, without reference to any dictionary, suggested that the word "technical" was a term of art which referred to manufacturing, engineering or architectural activities.

The Selling Dictionary renders the word as 'connected with the skills needed for a particular job'; 'an adjective relating to a particular subject, art or craft or its techniques'.

The Shorter Oxford English Dictionary defines the word as follows: "of a person; skilled in or practically conversant with some particular art or subject, belonging to or relating to an art or arts; appropriate or peculiar to or characteristic of a particular art, science profession, occupation; also pertaining to the mechanical arts and applied sciences generally;"

I am unable to agree with counsel for the appellant, that, there exists, in the context of the Income Tax Act, any limitation for this meaning of the word to applied sciences only, when, by definition, it also applies to the mechanical arts.

Thus, whether one considers the skills needed in selling tobacco as mechanical arts or applied sciences, the "best efforts" and "demonstrated expertise" of the agent is covered in the definition of technical.

The practical application of the knowledge possessed by the agent of the climatic and soil conditions, the style and smoking characteristics of the export leaf necessary for determination of the appropriate blend required by the customers fell into the ambit of technical services provided by the agent to the customer on behalf of the appellant.

But, even if the narrow definition advocated by counsel for the appellant were adopted, the appellant did not establish, on a balance of probabilities, that, the agent did not require knowledge of the type of export blending leaf required in the manufacture of cigarettes in order to make a sale.

The averment made, that knowledge of these characteristics was not a requirement to effect a sale, were contrary to the averment in the letter of 30 July that the appellant used such technical knowledge to purchase the appropriate blend on the auction floors and from contract farmers for export.

This technical knowledge was the expertise that the appellant required in making local purchases from both auction floors and contract farmers, and, in negotiating suitable prices with the major purchaser.

The appellant also relied on this technical knowledge to purchase the tobacco that met these specifications from both auction floors and contract farmers in order to satisfy the ultimate manufacturing requirements of the end customers.

The Bill of Lading…, indicates the expertise of the agents in regards to the shipping of export tobacco.

The six documents required were Bills of Lading, EUR 1 certificates, fumigation certificates, detailed weight lists, container packing lists, and invoices. These were all distributed to the agent. The agent gave special instructions on the time frames for dispatching documents and the type of containers used for carrying export tobacco and the manner of storage and fumigation standards applicable to the tobacco.

I would find, that, the agent supplied technical services to the appellant.

In paragraph 19 of his written submissions, counsel for the appellant contended, that, the word managerial was synonymous with directing the activities of the appellant.

In paragraph 1.3 of the minutes on p5 of the Rule 11 documents, the appellant indicated the agent was responsible for "price negations and other marketing logistics."

In my view, these activities were carried out on behalf of the appellant by the agent. The agent was directing the activities of the appellant in these foreign markets and was required to even advise the local authorities that it was acting for the appellant.

I find that the practical activities of the agents fell into the ambit of the definition of managerial advocated by counsel for the appellant.

Again, applying the definition of "manage" derived from the Shorter Oxford English Dictionary; the agents were running the affairs of the appellant in those markets. The agents exercised actual authority on behalf of the appellant.

Indeed, the letter of 30 July established that the eight functions of the appellant that were managed by Sales Administration Director in Zimbabwe were mirrored by the eight functions run by the agents outside Zimbabwe on behalf of the appellant.

I agree with counsel for the respondent, that, some of the functions constituted both managerial and administrative services.

The word is defined in the Oxford Advanced Learner's Dictionary as "relating to the running of a business, organisation, etc."

The synonyms accorded to the word include 'managerial'.

In both his oral and written submissions, counsel for the appellant was unable to make any practical distinction between administrative and managerial services. He conceded, that, filling forms, rendering reports, filing documentation, and making payments constituted administrative functions.

These administrative services were, in my view, inseparable from managerial services.

These were carried out by the agent on behalf of its principal - the appellant.

The documentation consisted of sales confirmation invoices, orders, shipping instructions, bills of lading, EUR 1 certificates, fumigation certificates, detailed weight lists, container packing lists, and customs clearance invoices which were dispatched to the agent for processing exports in the countries of destination.

I find that the practical activities of the agents administrative services.

In the Shorter Oxford English Dictionary, consultative means “pertaining to consultation, deliberative, advisory, take counsel, deliberate, confer, to plan, advise, have recourse to professional advice."

The preamble to the agreements proclaim the purpose for selecting the agents was based on their professionalism and ability to promote, supply, safeguard, and maintain personnel and materials required to make a sale.

In paragraph 19 of his written submissions, counsel for the appellant contended, that, the word 'consultative' connoted the offering of expert professional services and not "simply speaking to the appellant."

The suggestion, that, the agents were engaged for their expertise in "simply speaking" to the appellant is devoid of merit.

The very fact that the agents accompanied an accomplished and major international buyer of export tobacco demonstrates the high pedigree of the professional services rendered to the appellant by these agents.

Again, I find, as a matter of hard fact, that, the agents provided consultative services to the appellant.

The four words appear in the context of section 30 of the Income Tax Act.

That section is designed to tax fees that are payable or paid to an agent who is based outside Zimbabwe but from a source in Zimbabwe.

In my view, the words 'payable' and 'paid' as used in the definition of 'payee' in paragraph 1(1) to the Seventeenth Schedule of the Income Tax Act are synonymous with 'received by' or 'accrued to' or 'in favour of' that are used in section 8(1) of the Income Tax Act.

The overall purpose of the Income Tax Act is to tax taxable income "received by or accrued to or in favour of” the targeted taxpayer - including the non-resident in question.

The objective and sensible application of the meaning of each of these words is one which discards the notional plain meaning of the words in favour of the contextual meaning.

It seems to me, that, the real test of the pudding prepared by WALLIS JA is in the actual application of the facts found in each matter to the principles that he outlined.

The narrow meaning contended by counsel for the appellant does violence to the context and purpose of enacting the provision.

The true essence of a sale involves technical, managerial, administrative, and consultative competencies of the agent. That is why I maintain, that, there are hardly any activities of a taxpayer that can escape the wide embrace of the definition of fees that is found in the Seventeenth Schedule.

Accordingly, I am satisfied, that, the commissions in question constitute the type of fees contemplated by section 30 and paragraph 1 of the Seventeenth Schedule of the Income Tax Act.

Legal practitioners should keep up to date with and give cognizance to rules of the courts. They should not waste the court's time by bringing ludicrous applications before the court. The determination of cases should not be slowed or deferred un-essentially because a legal practitioner has failed to assimilate the Rules.

This was the case in this matter.

This was an application brought before the court on an urgent basis; but, before the court could hear the matter on the merits, the respondents took a technical objection in points in limine.

I reserved judgement, and, so here is my judgement.

The first point in limine raised by the respondent was that there was no application before me, based on the fact, that, the application did not comply with Rule 241.

Rule 241 states:

“(1) A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed and except as is provided in subrule (2) shall be supported by one or more affidavits setting out the facts upon which the application relies:
Provided, that, where a chamber application is to be served on an interested party, it shall be in Form No. 29 with appropriate modifications.”

However, the form in which this application was brought was neither in Form 29 nor 29B; I have no idea which form was used, nor do I know where the legal practitioner for the applicant got it from.

However, the lawyer for the applicant still managed to waste the court's time by referring the court to Rule 241 and Form 29B as read with Rule 244.

I do not have time to start teaching legal practitioners how to interpret statutes.

Rule 241 states that a chamber application should be in Form 29B; but, if it needs to be served, should be in Form 29.

Rule 244 is of no importance in answering a point in limine raised by the respondent: see Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Company of Zimbabwe Ltd and Another 2015 (2) ZLR 343.

When such a chamber application is brought before the court, it should be in Form 29 as it would need to be served on all interested parties.

This was an application that was truly defective.

Fortunately, the law is very lenient with legal practitioners and allows such lawyers to correct their mistakes by making an application for condonation to rectify any faulty applications.

However, the applicant's lawyer denied that the application was defective.

The applicant thus never made any application: instead, he submitted that the application is not fatal and stated that so long as he is able to show that there is compliance with the Rules, the application should be heard.

In National Social Security Authority v D Chipunza SC116-04 the court had this to say on rules of court:

“…,. Rules of court are enacted for purpose of regulating the conduct of matters brought before the court and that condonation of failure to observe them is not automatic or there for the asking. An applicant must make out a good case for condonation of its non-compliance with the rules. Failure to do so is fatal to his application.”

The applicant herein was alerted of its failure to comply with the Rules but decided not to apply for condonation.

Without an application before me, I cannot mero motu grant condonation.

As soon as a party realizes it has not complied with any of the Rules, that party should file an application for condonation: see De Beer En'N Aner v Westen Bank Ltd 1981 (4) SA 255.

In addition, as I have stated above, condonation for non-observance of rules of court is by no means a mere formality. It is for the applicant to satisfy the court, that, there is sufficient cause for excusing the non-compliance: see Meinfjres v H–D Combrinck (EDMS) BPK 1961 (1) SA 262 (AD)…,.

In this instance, although it became clear to counsel for the applicant that he had not complied with Rule 241(1) - but he insisted he had breached no Rules.

It was clear that the application by the applicant was one which required to be served on the other party. It had to be in Form 29B.

Counsel for the applicant argued, that, the applicant was allowed, in terms of the proviso to Rule 241(1), to use the procedure with modification. He argued that what he did was to simply modify the procedure.

The proviso to Rule 241(1) reads;

“Provided that, where a chamber application is to be served on an interested party, it shall be in Form 29 with appropriate modification.”…,.

Modification has been defined as an act or process of changing parts of something. It is a change or alteration that makes something work better. Modification must leave some resemblance to the original form.

The original Form 29 informs the respondent that if he intends to oppose the application he should file a Notice of Opposition in Form 29A, together with opposing affidavits. It also states that such opposition must be served on the applicant.

The applicant's application reads;

“TAKE NOTICE THAT an application is hereby made for an order in terms of the provisional order annexed to this application on the grounds that;

1….,.

2….,.

3….,.

FURTHER TAKE NOTICE THAT THE accompanying affidavit and documents shall be used in support thereof.

Dated at Harare this 3rd of February 2017.”

Obviously, such format is very different from Form 29.

The format used does not inform the respondents of what they must do upon receiving the application.

As I said above, modification must be done in a manner which leave the Form 29, as provided, better. One cannot reduce the requirements in Form 29 and call such modification.

I am of the view, that, the applicant has failed to comply with Rule 241(1) of this court's Rules.

Whilst it is within my power to condone such non-compliance, it is trite I must do so upon request.

I have not been requested to condone such derogation from the Rules.

The only remedy I have is to strike off the matter from the roll: see Forestry Commission v Moyo 1997 (1) ZLR 254 (S).

This is a competition law matter and concerns the definition of the term “merger” in terms of the Competition Act [Chapter 14:28] [hereinafter referred to as the Act].

The parties brought this matter as a Stated Case in terms of Order 29 Rule 199 of the High Court Rules 1971. The agreed facts of this matter are defined in terms of a Statement of Agreed Facts as follows:

“1. The first defendant and second defendant entered into a conglomerate merger in 2015, through the acquisition by the first defendant of a controlling interest in the second defendant.

The first and second defendants are not competitors nor are they customer and supplier.

The plaintiff has insisted on notification of the merger between the defendants on the basis, that, it is covered by the definition of a merger in section 2 of the Competition Act [Chapter 14:28].

The defendants insist that a conglomerate merger is not a notifiable merger in terms of section 2 of the Competition Act [Chapter 14:28].”

The issue the court was requested to determine is whether or not a conglomerate merger between the defendants is a notifiable merger in terms of section 2 of the Competition Act.

The determination of this matter rests solely on an interpretation of the phrase 'or other person' as used in the definition of “merger”.

The plaintiff urged the court to apply the literal rule of interpretation to discern the ambit of the word “merger” in the Competition Act whilst the defendants urged the court to interpret the phrase 'or other person' ejusdem generis or noscitor a sociis.

The word “merger” is defined in section 2 of the Competition Act as follows:

“'merger' means the direct or indirect acquisition or establishment of a controlling interest by one or more persons in the whole or part of the business of a competitor, supplier, customer or other person whether that controlling interest is achieved as a result of -

(a) The purchase or lease of the shares or assets of a competitor, supplier, customer or other person;

(b) The amalgamation or combination with a competitor or, supplier, customer or other person; or

(c) Any means other than as specified in paragraph (a) or (b);''

Our Competition Act is moulded along the same lines as the South African Competition Act No.89 of 1998. The original definition of “merger” in this Act was similar to ours. The definition, prior to it being amended in the year 2000, provided, in section 12, as follows:

“Merger Defined

(1) For the purposes of this Chapter 'merger' means the direct or indirect acquisition or direct or indirect establishment of control by one or more persons over all significant interests in the whole or part of the business of a competitor, supplier, customer or other person, whether that control is achieved as a result of –

(a) Purchase or lease of the shares, interest, or assets of that competitor, supplier, customer or other person;

(b) Amalgamation or combination with that competitor, supplier, customer or other person; or

(c) Any other means.''

The two definitions are clearly similar.

In this respect, the definition given to the term “merger” in the South African Act will be considered in determining the meaning of the word 'merger' in our own Act.

The new definition in the South African Competition Act has been improved and reads as follows:

“12. Merger Defined

(1)(a) For purposes of this Act, a merger occurs when one or more firms directly or indirectly acquire or establish direct or indirect control over the whole or part of the business of another firm.

(b) A merger contemplated in paragraph (a) may be achieved in any manner, including through -

(i) Purchase or lease of the shares, an interest or assets of the other firm in question; or

(ii) Amalgamation or other combination with the other firm in question.”

This definition is simple and all-inclusive of all mergers.

The approach to interpretation of statutes is to employ, first, the golden rule of interpretation which is the literal rule.

In Nyamande and Anor v Zuva Petroleum SC43-15, the court remarked, that, the time honoured and golden rule of statutory interpretation is that you give the words of a statute their ordinary meaning. The rule entails giving the statute its ordinary grammatical meaning. This must be done unless if there is an ambiguity or absurdity ensuing from the interpretation, in which case other cannons of interpretation will require to be used.

In the case of ambiguity in a provision, aids such as maxims may be resorted to in ascertaining the language and grammatical meaning of a provision.

The ejusdem generis rule is employed only where resort to the literal rule will result in an absurdity.

In his book, Introduction to Zimbabwean Law (Weaver Press, Harare) 2010…, Professor L MADHUKU examines the meaning and application of the eiusdem generis rule and states, that, the rule literally means “of the same kind”. He states that “where general words follow an enumeration of things or items of the same class or genus, the general word must be interpreted as restricted only to the things of that particular class.”

He states further, that, for the maxim to apply, the items enumerated must constitute a genus.

He relies on a similar approach by G COCKRAM (1987), The Interpretation of Statutes, 3rd ed, Cape Town; Juta and Co…., where he states as follows:

“Where a list of items which form the genus or class is followed by a general expression, the general expression is, in the absence of a contrary intention in the statute, construed ejusdem generis to include any other particular words.”

He makes reference to the case of Quazi v Quazi 1980 AC 744 in which the court explained, that, when the word 'other' is used in a statute:

“The presumption, then, is that the draughtsman's mind was directed only to the genus indicated by the specific words and that he did not, by his addition of the word 'other' to the list, intend to stray beyond its boundaries, but merely to bring within the ambit of the enacting words those species which complete the genus but have been omitted from the preceding list either inadvertently in the interests of brevity.”

The eiusdem generis rule applies where -

(1) The subject of enumeration constitutes a class or category.

(2) That class or category is not exhausted by the enumeration.

(3) The general term follows the enumeration.

(4) There is no indication of a different legislative intent.

The interpretation sought should not have the effect of rendering words in a statue redundant, superfluous, or useless: see Commissioner of Taxes v Edgars Stores Ltd 2001 (1) ZLR 147 (S).

In Musiwo v GMB 2009 (1) ZLR 304 (S) the court remarked, that, the ejusdem generis rule is not a rule of general application and has to be applied with caution.

The tendency by the courts is to construe general words in their ordinary sense: see Anderson v Anderson 1 QB 752.

In order to get a full understanding of the definition of the word “merger” as given in the Competition Act, it is pertinent to first have an understanding of what a merger is.

Competition Law recognises three types of mergers; being, vertical, horizontal and conglomerate mergers.

Horizontal mergers are mergers that take place between companies that are in direct competition with each other. An example of a horizontal merger is a merger of two businesses with similar products that are in competition to each other. An example of a horizontal merger is that between Daimler and Chrysler, two car manufacturing companies that merged.

Vertical mergers are those mergers that take place between two related companies as in the case of a customer and a company, or where a supplier and a company merge. An example of a vertical merger is one between a tyre manufacturing company and a retailer selling or marketing the tyres.

A conglomerate merger is a term that is used to denote a merger between large firms that engage in unrelated business activities with different customer bases. Such entities are not competitors and do not have a customer and supplier relationship. There is no economic relationship between the acquired company and the acquiring company.

A conglomerate merger is able to diversify its activities and manage a wide range of activities through the merger. The merger may result in an increase of its market share and power. A conglomerate merger may create a monopoly resulting in it pushing other companies out of the market and may impair competition on the market.

The Competition Act specifically refers to acquisitions of a controlling interest in the business of a competitor, customer, or supplier only, and, hence, directly speaks to vertical and horizontal mergers only.

There is no specific reference made in the Competition Act to conglomerate mergers.

The respondents are engaged in two different industries. The two businesses do not pose competition to each other. Geribran Services (Pvt) Ltd is involved in the sale of motor spares and accessories whilst Innscor Africa Limited is in the food industry. What has transpired, in this instance, is that two companies, involved in two unrelated businesses, have merged.

The parties are in agreement, that, this sort of merger constitutes a conglomerate merger.

The defendants relied on an opinion given by Advocate de Bourbon on the Caledonia Holdings (Africa) Ltd Merger, when the defendants merged, for the proposition that a conglomerate merger is not a merger as envisaged by the definition of a merger in the Competition Act and is not a notifiable merger. The opinion concluded, that, conglomerate mergers are not covered in the Competition Act.

The defendants also rely on a report titled UNCTAD Voluntary Peer Review of Competition Law and Policy: Zimbabwe, An Overview. The paper states that the term “merger” as defined in our Competition Act covers both horizontal and vertical mergers. It states, that, the definition of merger in the Competition Act does not include pure conglomerate mergers and joint ventures resulting in the establishment of “green field” enterprises and that the general provision under section 2(1) cannot justify the omission of a specific provision to cover such mergers. The report suggests that the shortcoming be rectified.

The applicant initially accepted this position and accepted that the merger was a non-notifiable merger.

The plaintiff now takes the view, that, conglomerate mergers are mergers in terms of the definition of “merger” given in our Competition Act and require to be notified.

The plaintiff insists on the defendants notifying it of the merger and paying the levies due to it.

The way in which section 12(1) of the South African Competition Act has been interpreted by the South African Competition Tribunal, before the amendment, is relevant.

The South African Competition Tribunal has interpreted the word “merger” and defined the phrase 'other person' in the context of their old section 12 which was identical to ours then.

In Bulmer SA (Pty) Ltd v Distillers Corporation (SA) Ltd (1) [2001-2002] CPLR 448 (CT), the respondents purchased the business of another company. The Competition Tribunal was faced with a question regarding whether the transaction constituted a merger as defined in the South African Competition Act requiring the respondents to notify the Competition Commission of the merger. The respondents had argued, that, they had no duty to notify the Commission of the merger for the reason, that, the transaction did not lead to changes in the ultimate control of either company.

It interpreted the definition of a merger to include all mergers. The court held as follows:

“Section 12 refers to a competitor, supplier, customer or other person. The inclusion of the category of other person considerably widens the ambit beyond the more obvious concerns about horizontal and vertical mergers to include all mergers.”

The case highlights the need for a wide interpretation of the word “merger” in order to protect competition.

Another very important case is Imperial Holdings Ltd v Safair (Pty) Ltd 908/lm/Jan 00 [2000] ZACT, where the court evaluated a conglomerate merger which had been notified.

The definition of merger in the South African Competition Act was amended in the aftermath of this decision.

There has been diverse opinion regarding the requirement for notification of a conglomerate merger.

Commenting on the provisions of section 12(1)(a) of the South African Competition Act, D LEWIS in his speech, The Competition Act 1998–Merger Regulation, concludes, that, the definition in the South African Act, which is identical to ours, includes horizontal, vertical, and conglomerate mergers. He states on p2 of his speech as follows:

“There are a number of key features of merger regulation under the Act that you should appreciate upfront - firstly, it incorporates vertical, horizontal, and conglomerate mergers; Secondly, it is about acquisition of control, and, the mechanisms for acquiring control are broadly defined; thirdly, control itself is broadly construed. In short, the merger definition is inclusive – there are few business combinations that would fall outside of the definition of merger. This contrasts markedly with the previous Act that dealt with horizontal mergers only - that is, mergers between competitors only.''

Commenting on the definition of a “merger” in our own Competition Act, IGNATIOUS NZERO, in an article titled “Is there a gap in the definition of corporate mergers in Zimbabwe's Competition Act? Revisiting the Caledonia Holdings (Africa) Limited/Blanket Mine (1983) (Private) Limited Merger” 2015 78.4 THRHR 589, states that section 2 is clear that it covers conglomerate mergers and are notifiable.

He criticised the legal opinion by Advocate de Bourbon that suggests, that, the application of the ejusdem generis rule excludes conglomerate merger transactions from the scope of the definition of a merger. His views are that the phrase 'or other person' must be interpreted broadly to cover conglomerate mergers. He states as follows:

“It is submitted, that, the application of the rule (ejusdem generis) in determining the meaning of the         phrase 'or other person ' as used in the statutory definition of a merger results in absurdity, as it would mean that only economic activities having an effect on the economy of Zimbabwe in the same class as competitor, supplier, and customer would constitute a merger whereas other economic activities with similar effect on the economy of Zimbabwe, but which are not in the same genus or class as 'competitor, supplier, customer' would not constitute a merger. It is submitted, that, there is enough ammunition provided in the statute to determine the extent to which the legislature intended the statute to apply, in general, and the types of mergers covered, in particular. As such, the application of the eiusdem generis rule was not necessary as it had the effect of creating an artificial gap in the statutory merger definition. The rule should not be applied as a general rule of application, but, rather, cautiously to avoid misinterpretation of statutory provisions.

In particular, in constructing the meaning of 'or other person' used in section 2, it must be remembered, that, the ejusdem generis rule is only one of many rules of construction; it is not to be invoked automatically whenever general words follow particular words.''

What these authorities do is highlight that there is a gap in the definition of “merger” as given in our Competition Act and the old section 12 of the South African Act.

They propose a broad approach to the definition of 'merger'.

The authorities also discount the use of the eiusdem generis rule as a tool of interpretation of the word on the premise, that, it creates an artificial gap in the definition and leads to an absurdity. Their view is that a conglomerate merger falls within the definition of merger as defined in section 2 of the Competition Act and is a notifiable merger.

Coming to the merits of the application, the Competition Act aims to promote and maintain competition in the economy by regulating acquisitions, anti-competitive business practices, and abuse of market power and anti-competitive mergers. Its focus is on control of restrictive trade practices, anti-competitive mergers and unfair trade practices.

The intention of the legislature, in enacting the current definition of a merger, was to protect and regulate competition and have as wide a bracket as possible covering all mergers that have to be notified to the plaintiff, with those mergers which create serious competition challenges receiving extra attention by way of approval of the merger with conditions or complete prohibition of that merger. In this way, the Competition Commission is able to scrutinise all mergers and keep those mergers that create competition in check.

Only mergers which need not be notified are those which do not meet the monetary threshold of 1,2 million in terms of turnover, in terms of the Regulations.

The determination of this matter rests on the court giving meaning to the phrase 'or other person'.

Section 2 of the Competition Act defines a “merger” as an acquisition or establishment of a controlling interest in the business of a competitor, supplier, customer 'or other person.'

The classes of persons specified under section 2 of the Competition Act cover horizontal and vertical mergers only. There is no clarity with regards conglomerate mergers.

The definition includes a general provision including 'other person'.

Reference to 'or other person' when used in its ordinary grammatical sense and meaning includes any 'other person' not specified in the definition of merger who acquires or establishes a controlling interest in the business of another.

It becomes clear, that, the effect of the use of 'other person' is to extend the definition of merger to other classes of persons not previously specifically mentioned. It means that 'other person' refers to persons who are capable of merging.

The word 'other person' has to be interpreted from the perspective that it becomes the only type of merger which is not either a horizontal or a vertical merger - that is, a conglomerate merger.

'Other person' includes all persons who are not competitors, suppliers or customers of a merging party.

'Other person' ought to be interpreted broadly.

This approach allows the Commission to examine “a wide range of transactions which could result in an alteration of the market structure, and, in particular, reduces the level of competition in the relevant market:'' see Bulmer SA (Pty) Ltd v Distillers Corporation (SA) Ltd (1) [2001-2002] CPLR 448 (CT).

My view is that the definition does not limit the mergers to the list of persons specified.

The reference to 'other person' covers those mergers not covered in the definition and seeks to include other unspecified persons - including conglomerate mergers.

Conglomerate mergers, although not entered into by competitors, suppliers or customers, affect competition.

When two companies come together in a conglomerate, although they may not be in the same trade, the effect is that their business is strengthened financially. In some cases, the production capacity may increase. Once two entities merge to form a conglomerate, the joint business is strengthened financially and its production increased thereby controlling the market. This may result in other businesses being pushed out of the market by the merger thereby impairing competition.

Conglomerate mergers therefore affect competition.

The inclusion of the phrase 'or other person' must have been to ensure that every type of merger is covered by the definition. The legislature wanted to cover unforeseen mergers and ensure that all mergers that have an effect on competition are notified.

My conclusion is that the definition of merger, in section 2 of the Competition Act, is all inclusive and covers all mergers.

A conglomerate merger qualifies as a merger in terms of section 2 of the Competition Act and is covered under the phrase 'other person'. The inclusion of the words 'other person' widens the bracket to include all mergers.

The merger between the defendants falls under the definition of merger as envisaged by section 2 of the Competition Act. The defendants are required to notify the plaintiff of the merger and pay the prescribed notification fee in terms of section 34A(2) of the Competition Act as read with the Competition (Notification of Mergers) Regulations, 2000.

Once the meaning of the phrase is ascertainable using the grammatical approach, there is no need to apply the eiusdem generis rule. A literal interpretation of the phrase 'other person' does not lead to an absurdity. There is no justification in applying the ejusdem generis rule.

The approach urged upon by the defendants, that the enumerated words create a class of entities that are in the same market, and, further, that a conglomerate merger does not fall under the definition of 'other person' is erroneous.

This seems to be the reason why the defendants advocate for the eiusdem generis rule.

If one applies the ejusdem generis rule, the general phrase must be interpreted to mean things of that particular class. This will mean, that, only vertical and horizontal mergers are covered under the definition. The interpretation ignores conglomerate mergers, which, although they involve non competitors, still create competition to other entities in that the merger will be in a stronger position than before.

The problem with that interpretation is that it ends up exhausting the particular class or genus class, leaving the phrase 'or other person' with no purpose in the definition.

From a competition perspective, if you can only have competitors, suppliers, and customers, the end result will be that 'other person' has no meaning and the genus would have been exhausted. If the class is exhausted by the enumerated words, then, the rule cannot be applied.

The problem with the respondent's argument is that they don't identify who is covered under 'other person'.

If the ejusdem generis rule is used 'other person' becomes meaningless.

I agree with the view expressed by I NZENZA, that, the use of the eiusdem generis rule would result in an absurdity as a conglomerate still has the same effect as vertical and horizontal mergers on the economy of this country. The merger will affect the balance of economic activity in Zimbabwe.

The court is being asked to interpret the law and set the record straight and correct the anomaly.

In Tregers Industries (Private) Limited v Commissioner General of the Zimbabwe Revenue Authority 2006 (2) ZLR 62 (H)…, the court remarked as follows:

“The applicant argued, that, the respondent is 'estopped' by the actions of his subordinates from denying that the applicant's interpretation of section of the Act is correct. I do not accept this submission. What the applicant is saying is that irrespective of the correct interpretation, the fact that the respondent's employees accepted that the goods in question were zero rated estops the respondent from arguing to the contrary. As a matter of law, that cannot be correct. If an interpretation of the law is not correct, then, that interpretation is not correct. The fact that respondent's employees may not have looked into the matter more carefully cannot estop the respondent from arguing that such interpretation is not correct.”

See also Delta Corporation Ltd v Zimbabwe Revenue Authority HH621-15.

A litigant who has relied on a wrong interpretation of the law is entitled to approach the courts seeking a correct interpretation of the law. Nothing stops the plaintiff from insisting on the correct legal position being followed.

A statutory body cannot be estopped from changing its legal position in relation to its statutory obligations and rights. This is specially so where public monies are concerned. The plaintiff is not barred from seeking to correct the position and claiming the outstanding monies for levies due to it in terms of the Competition Act.

The original crafters of the definition of 'merger' having seen a gap in the definition have improved it; yet, we still seem to want to hang onto the definition. Consequently, the definition of “merger” in the Competition Act needs re-conceptualization.

In order to ensure effective control of mergers, the definition of “merger” in the Competition Act requires being wide. A definition that is simple and all-inclusive is desirable.

We are lagging behind South Africa.

Our drafters have been caught flat-footed. The legal drafters have a tendency of copying and pasting statutory provisions from other jurisdictions. They then sit and relax and do not follow up on developments in those other jurisdictions and update their laws.

The South Africans amended their own definition of “merger” way back in the year 2000 and we are still faced with an archaic definition of the term 'merger'.

In the result, it is ordered as follows:

1. It is declared, that, there is a notifiable merger between the first and the second defendants, in a manner obliging the defendants to notify the plaintiff thereof in terms of section 34A(2) of the Competition Act [Chapter 14:28] as read with the Competition (Notification of Mergers) Regulations, 2002 (S.I.270 of 2002) (as amended);

2. The first and second defendants, jointly and severally, the one paying the other to be absolved are to comply with section 34A(2) of the Competition Act [Chapter 14:28] as read with the Competition (Notification of Mergers) Regulations, 2002 (SI270 of 2002) (as amended) by notifying of this merger and paying the merger notification fee in the sum of $50,000 within seven (7) days from the date of this order;

3. Interest thereon at the prescribed rate of interest, currently 5% per annum, calculated from the date of issue of the summons to date of full payment, both dates inclusive; and

4. Costs of suit.

Counsel for the applicant's contention, that, the right to equal protection and benefit of the law, under the current Constitution, is broader or equivalent to the right under the former Constitution, may well have merit, and the Court, in a proper case, may have the opportunity to revisit and interrogate this issue further.

For, one may ask: how can a right such as the general protection and benefit of the law, a right so notorious and screamingly loud in our jurisprudence, simply disappear without as much as a whimper?

Some have suggested that it has diffused into the expansive Bill of Rights that the current Constitution boasts of, but, without pointing out the exact nooks and crannies wherein it now snugly resides.

Could it be that this right is hiding, in plain sight, under section 56(1) of the Constitution?

That this right, like a binary system of stars, consists of two or even more rights closely held together by gravitational attraction and orbiting so tightly, that, from a distance, it appears as just one right, one star?

Sooner, rather than later, this Court, in my respectful view, must find a proper home for this right and stop its ghost-like wandering or formerly declare its existence or re-incarnation in terms of section 47 of the Constitution, which unambiguously states:

“Section 47 Chapter 4 does not preclude existence of other rights

This Chapter does not preclude the existence of other rights or freedoms that may be recognised or conferred by law, to the extent that they are consistent with this Constitution.”

This is an appeal against the whole judgment of the High Court handed down on 8 September 2020, declaring “that payment by the applicant (respondent) of the sum of RTGS$235,620=99 together with interest at the prescribed lending rate calculated from 19 February 2020 to the date of final payment shall be the full and final settlement of the respondent's (appellant's) debt.”...,.

The appellant is Homelink (Private) Limited, a registered money-lender in terms of the law. The respondent is a Zimbabwean national living in the diaspora.

On 17 August 2018, the parties entered into a loan agreement which came into effect on 30 October 2018. In terms of the agreement, the respondent was granted a loan in the sum of US$450,000 to purchase an immovable property, being a certain piece of land situate in the district of Salisbury called the remainder of Stand 251 Helensvale Township measuring 8,242 square metres in extent also known as 2 Denys Close, Helensvale, Harare.

The same Stand was also to be used as security for the loan. A mortgage bond was accordingly registered in favour of the appellant in the sum of US$450,000.

The parties also agreed that the interest applicable to the loan “shall be at a variable rate currently pegged at 10 percent per annum or at such rate as shall be determined by the Lender from time to time.”

Furthermore, that the interest “shall be calculated on the outstanding balance (at all times expressed in United States Dollars) at the prevailing interest rate.”

It was also agreed that repayments would commence on 30 October 2018 and that “the principal balance, interest, and charges accruing thereon shall have been paid in full by 30 September 2033.”

The parties also agreed, in clause 10, as follows:

“10 CHANGES IN CIRCUMSTANCES

10.1 If by reason of:

10.1.1 The introduction of any change in any applicable law or regulation, or any change in the interpretation or application thereof; or

10.1.2 Compliance by the Lender with any directive, request or requirement (whether or not having the force of law) of any Central Bank, Government, fiscal, or other authority;

10.1.3 It becomes unlawful or it is prohibited or it is contrary to such directive, request or requirement for the Lender to maintain the Loan or to give effect to any of its obligations, as contemplated by this Agreement, then, the Lender may notify the Borrower and the Borrower shall promptly prepay the Loan, together with all interest costs and expenses accrued thereon.”

At the time that the loan agreement was concluded, the United States dollar was the dominant legal tender along with other multi currencies.

Although the loan was expressed in United States dollars, it was disbursed in two parts or tranches.

US$5,685=85 was disbursed on 13 September 2018. The greater part of the loan, in the amount of US$444,341=15 was disbursed on 16 November 2018 - after the separation of the RTGS dollars and nostro foreign currency bank accounts and it was disbursed in RTGS dollars or local currency at the rate of one-to-one to the United States dollar.

The reason for disbursement of the greater part of the loan in RTGS dollars is unexplained in the papers.

In its opposing affidavit a quo, the respondent merely states as follows:

“The correct position is that S.I.33 of 2019 came into force on 22 February 2019. The sum of US$444,341=15…, was disbursed on 16 November 2018 as stated above.”

In his application in the court a quo, the respondent stated the crisp issue before the court as follows:

“The legal issue is whether or not the loan agreement, or the liability arising therefrom, falls within the ambit of section 4(1)(d) of S.I.33/2019 now incorporated in terms of section 22(1)(d) the Finance (No.2) Act 2019 and is therefore deemed to be in RTGS dollars at a rate of one-to-one to the United States dollar.”

As stated at the commencement of this judgment, the court a quo found in the respondent's favour. The court stated, at p8 of its judgment:

“The difficulty of the dispute of the parties is exacerbated by the fact that neither the Principal Act nor the Finance (No.2) Act of 2019 appears to have defined the phrase foreign loan and/or obligation.

However, insights into the same can be gleaned from what the Cambridge Dictionary states on that issue: dictionary.cambridge.org defines a foreign loan as a loan to, or from, a Government or an organisation in another country. The Longman Business Dictionary defines foreign loan as a loan to a country or organisation made by a foreign Government or financial institution.

It is evident, from the definitions which have been examined, that, the loan which the respondent advanced to the applicant does not fall under the definition of a foreign loan. Nor can the obligation which arises from the contract of the parties be classified/defined as a foreign obligation to the applicant. The loan has all the characteristics of a domestic loan which falls under the ambit of the provisions of the Act.”

The court found, at p9:

“The loan cannot, by any stretch of imagination, be defined as a foreign loan. It is, to all intents and purposes, a local loan which is classified as such because of the characteristics which are apparent on its face. It is, accordingly, properly covered under the provisions of the Act.”

The appellant was aggrieved by the court a quo's decision granting the declaratur sought by the respondent and it filed this appeal on the following grounds:

“1. The court a quo erred and misdirected itself in not giving effect to the parties agreement, namely, that, all repayments would be made in United States Dollars. Consequently, the court a quo made a contract on the parties behalf;

2. The court a quo erred and misdirected itself in not finding that the parties loan agreement was a foreign obligation within the contemplation of section 21(2)(b) of the Finance (No.2) Act 2019 and therefore continued to be payable in foreign currency.”

The appellant prayed for the success of his appeal and for the setting aside of the decision of the court a quo and the substitution thereof with an order dismissing the application with costs.

Counsel for the appellant submitted, that, the issue arising from the appellant's second ground of appeal is dispositive of this matter; the narrow issue being whether the court a quo was correct in finding that the loan agreement was not a foreign loan, within the contemplation of section 21(2)(b) of the Finance (No.2) Act of 2019, that continued to be payable in foreign currency.

It was his submission, that, the first ground of appeal will either be upheld or fall away depending on the finding thus made regarding the nature of the loan agreement. If it is a foreign loan, the first ground of appeal must succeed, but if not, then the first ground falls away, so he contended.

Counsel sought to buttress the appellant's stance, that the loan is a foreign obligation, by submitting that the loan in casu was issued on the strength of exchange control approval given by the Reserve Bank of Zimbabwe. He referred the court to a document at p65 of the record.

It is a letter dated 2 August 2019 authored by the Deputy Director, Foreign Investment, at the Reserve Bank of Zimbabwe and addressed to the Managing Director of the appellant. The body of the letter reads:

“Thank you for your letter dated 09 July 2019 regarding the request to continue issuing diaspora mortgages in foreign currency. We wish to advise that Homelink (Pvt) Ltd can continue to issue mortgages denominated in foreign currency to diaspora clients as authorised under Exchange Control authority GR4268 dated 26 October 2016.”…,.

To his credit, counsel readily conceded that the appellant's failure to attach to its papers the authority referred to as GR4268 placed the court a quo, and, by extension, this Court, in an invidious position as its contents are and remain unknown.

Counsel argued, that, the court a quo ought to have accepted and adopted a wider and more generous definition of a foreign loan or foreign obligation and that if it had done so, it would have found that the loan agreement in casu was a foreign obligation on the part of the respondent and that it therefore continued to be payable in United States dollars.

It was also counsel's submission, that, the disbursement of the loan in local currency was immaterial to the determination of the dispute as that was in accordance with the dictates of the agreement which clearly stipulated that repayments were to be made in United States dollars.

He placed reliance for this submission on the case of Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397…, SC24-14 where this Court held that:

“In principle, it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is so as a matter of policy.”

Counsel for the respondent, on the other hand, submitted that the appellant's second ground of appeal relates to findings of fact and the conclusion made by the court a quo that the loan was a domestic loan. That being so, the principle relating to appellate courts not lightly upsetting findings of fact by lower courts applies.

Counsel submitted, that, the factual findings made by the court a quo were based on and supported by the evidence that was placed before the court.

He further submitted, that, on an application of the definitions that the court a quo had regard to and applied to the facts, one of the parties to the contract had to be a foreigner, and, in casu, neither of the parties was a foreigner.

Although the respondent was working in Ethiopia, the mere fact of him coming home to enter into the contract showed that it was a domestic loan. Furthermore, the respondent's domicilium citandi et executandi did not change his Zimbabwean domicile.

He further submitted, that, the agreement having been signed in Harare, Zimbabwe, by a Zimbabwean national and a Zimbabwean moneylender, for the sole purpose of the purchase of an immovable property in Zimbabwe, the loan was undoubtedly not a foreign loan.

Counsel argued, that, the disbursement of the greater part of the loan in RTGS dollars was another telling factor, further justifying and fortifying the court a quo's findings.

He submitted, that, there was thus nothing to warrant a finding by this Court that the court a quo's findings were irrational and therefore called for interference.

Regarding the appellant's first ground of appeal relating to sanctity of contract, counsel submitted, that, by enacting section 22(1)(d) of the Finance (No.2) Act, Parliament abrogated the said common law principle.

For convenience, the provision is reproduced hereunder:

“That, for accounting and other purposes (including the discharge of financial or contractual obligations), all assets and liabilities that were, immediately before the first effective date, valued and expressed in United States dollars (other than assets and liabilities referred to in section 44C(2) of the principal Act), shall, on the first effective date, be deemed to be values in RTGS dollars at a rate of one-to-one to the United States dollar.”

The issue for determination by this Court is whether or not the loan agreement entered into by and between the parties is a foreign loan which gave rise to a foreign obligation payable in foreign currency by the respondent.

This stated issue is dispositive of the appeal. This is so because, as rightly pointed out by the court a quo at pp10-11 of its judgment:

“Where the law speaks in clear and unambiguous terms about the substance of any matter, the intention of the Legislature should be respected as well as given respect to. That intention takes precedence over the parties intention as expressed in their contract.”

Section 4 of S.I. 33/2019 provides in relevant part:

“4(1) For the purposes of section 44C of the principal Act, as inserted by these regulations, the Minister shall be deemed to have prescribed the following with effect from the date of promulgation of these regulations (“the effective date”) –

(a)…,.

(b) That, Real Time Gross Settlement system balances expressed in the United States dollar (other than those referred to in section 44C of the principal Act) immediately before the effective date, shall, from the effective date, be deemed to be opening balances in RTGS dollar at par with the United States dollar; and

(c)…,.

(d) That, for accounting and other purposes, all assets and liabilities that were, immediately before the effective date, valued and expressed in United States dollars (other than assets and liabilities referred to in section 44C(2) of the principal Act), shall, on and after the effective date, be deemed to be values in RTGS dollars at a rate of one-to-one to the United States dollar.”

The provisions in section 4(1)(d) of SI 33/2019 (supra) were incorporated in the Finance (No.2) Act 2019, section 22(1)(d) of which provides:

“(1) Subject to section 5, for the purposes of section 44C of the principal Act, the Minister shall be deemed to have prescribed the following with effect from the first effective date -

…,.

(d) That, for accounting and other purposes (including the discharge of financial or contractual obligations), all assets and liabilities that were, immediately before the first effective date, valued and expressed in United states dollars (other than assets and liabilities referred to in section 44C(2) of the principal Act) shall, on the first effective date, be deemed to be values in RTGS dollars at a rate of one-to-one to the United States dollar.”…,.

The Finance (No.2) Act 2019 further provides, in section 22(4)(a), that:

“(4) For the purposes of this section -

(a) It is declared for the avoidance of doubt, that, financial or contractual obligations concluded or incurred before the first effective date, that were valued and expressed in United states dollars (other than assets and liabilities referred to in section 44C(2) of the principal Act), shall, on the first effective date, be deemed to be values in RTGS dollars at a rate of one to one to the United States dollar.”…,.

The appellant contends, that, by virtue of the provisions of section 44C(2)(b) of the principal Act, the respective assets and liabilities of the parties in casu are excluded from the effects of section 4(1)(d) of SI 33 of 2019.

Section 44C(2) of the principal Act (the Reserve Bank of Zimbabwe Act [Chapter 22:15] provides as follows:

“(2) For the avoidance of doubt, it is declared that the issuance of any electronic currency shall not affect or apply in respect of -

(a) Funds held in Nostro foreign currency accounts, which shall continue to be designated in such foreign currencies; and

(b) Foreign loans and foreign obligations in any foreign currency, which shall continue to be payable in such foreign currency.”

In Zambezi Gas Zimbabwe (Pvt) Ltd v N.R. Barber (Pvt) Ltd & Anor SC03-20 (Zambezi Gas), at p9, this Court concluded:

“In interpreting section 4(1)(d), regard should be had to assets and liabilities which existed immediately before the effective date of the promulgation of S.I.33/19. The value of the assets and liabilities should have been expressed in United States dollars immediately before 22 February 2019 for the provisions of section 4(1)(d) of SI33/19 to apply to them.

Section 4(1)(d) of S.I. 33/19 would not apply to assets and liabilities, the values of which were expressed in any foreign currency other than the United States dollar immediately before the effective date….,.

It is the assessment and expression of the value of assets and liabilities in United States dollars that matters.

Section 4(1)(d) of SI 33/19 is specific as to the type of assets and liabilities that are excluded from the reach of its provisions. The origin of the liabilities is not a criterion for exclusion….,.

What brings the asset or liability within the provisions of the statute is the fact that its value was expressed in United States dollars immediately before the effective date and did not fall within the class of assets and liabilities referred to in section 44C(2) of the Reserve Bank of Zimbabwe Act [Chapter 22:15] (“the principal Act)….,.”

It is without doubt, that, Zambezi Gas Zimbabwe (Pvt) Ltd v N R Barber (Pvt) Ltd & Anor SC03-20, having interpreted and clarified the law, the appellant can only succeed in this appeal if it can show, that, the loan agreement in casu is a foreign loan and that the court a quo therefore erred and misdirected itself in coming to a contrary conclusion.

The inescapable facts that the court a quo properly paid regard to are that the lender and the borrower in the loan agreement were both Zimbabweans, albeit an institution and an individual; the loan agreement was executed in Zimbabwe; the sole purpose of the loan was the purchase of an immovable property situated in Zimbabwe; the loan was largely disbursed in local currency, except for a small portion that was disbursed earlier in United States dollars at a time when the United States dollar was one of the legal tender currencies.

Sight is not lost to the fact, that, the above are factual findings made by the court a quo.

No irrationality was alleged or shown in the making of such findings. No specifics were provided as to the nature and source of the “generous” or 'wider' definition of “foreign loan” or 'foreign obligation' that the court a quo is criticised for not having had regard to.

The contention, that, the exchange control approval that was given by the Reserve Bank of Zimbabwe (RBZ) was proof that this was a foreign loan was not supported by documentary evidence. No explanation was proffered as to why the alleged document, which does not form part of the papers, was not relied on and availed by the appellant.

In any case, it is beyond the scope of the Reserve Bank of Zimbabwe (RBZ) to convert what is factually a domestic loan into a foreign loan.

In view of the strenuous submissions made in urging this Court to consider this aspect favourably for the appellant, this would appear to be an omission by the appellant of a crucial document.

It is trite, that, a court decides a matter on the basis of the evidence that is placed before it.

It therefore follows, that, the court a quo cannot be faulted for failing to take into account evidence that was not placed before it. The court a quo would face severe criticism if it had done so.

The court thus correctly found, that, the loan agreement was not a foreign loan and did not create a foreign obligation on the respondent's part.

In Breastplate Service (Private) Limited v Cambria Africa PLC SC66-20, at pp9-10, this Court stated:

“Section 44(C)(2)(b) of the Reserve Bank Act, as inserted by section 3(1) of the 2019 Regulations, makes it clear that the issuance of any electronic currency, i.e. RTGS dollars, shall not affect or apply to any foreign obligation. This is reinforced by section 4(1)(d) of the Regulations which explicitly excludes foreign obligations valued and expressed in United States dollars from the deemed parity valuation in RTGS dollars.”

With the factual finding made a quo, that, the loan agreement was not a foreign loan which created a foreign obligation, and the appellant having failed to show the error or misdirection therein, the appellant must accept and submit to the clear dictates of the law.

No basis having been established for this Court to upset the court a quo's findings and consequent conclusion, it is our view that this appeal has no merit.

The emphasis on motivating the appellant's second ground of appeal, and the submission that the first ground would only become relevant if the appellant succeeded on the second ground of appeal effectively translates to the above discourse sealing the appellant's fate.

Notably, it would also be absurd for the appellant to be paid United States dollars for a loan that it largely disbursed in local currency.

The argument that it must be so because the loan agreement stipulated that repayments were to be in United States dollars is a roundabout way of surreptitiously resorting to the first ground of appeal which the appellant clearly realized did not stand scrutiny.

Costs will follow the cause.

We are not satisfied that they should be on the scale of legal practitioner and client as urged by the respondent. In our view, there is no legal basis that has been given that would warrant an award of costs on a higher scale.

It is accordingly ordered as follows:

The appeal be and is hereby dismissed with costs.

Article 16 of the Arbitration Act Chapter 7:15]..., provides as follows:

“ARTICLE 16

(1) The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. A party is not precluded from raising such a plea by the fact that he has appointed, or participated in the appointment of an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified.

(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this article either as a preliminary question or in an award on the merits. If the arbitral tribunal rules on such a plea as a preliminary question, any party may request, within thirty days after having received notice of that ruling, the High Court to decide the matter, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal may continue the arbitral proceedings and make an award.”...,.

Article 16(1) of the Arbitration Act provides, that, an arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.

A ruling on jurisdiction can therefore include that of any objections with respect to the existence or validity of the arbitration agreement.

A reading of Article 16(1), (2) and (3) of the Arbitration Act establishes, that, issues of the existence or validity of an arbitral agreement can be included in a ruling on the Arbitrator's jurisdiction....,.

The Article does not provide for a request to be made to the High Court to decide the matter if the ruling is made in the award on the merits.

It is apparent from the wording of Article 16(3) of the Abitration Act, that, what the High Court can decide the matter on is whether or not the arbitral tribunal has jurisdiction and the existence or validity of the arbitral agreement.

The Article does not authorise it to go beyond those issues.

This is an appeal against the whole judgment of the High Court (the court a quo) in which it dismissed the appellant's urgent chamber application wherein she sought an interdict to prevent the first respondent (the President) from establishing a Tribunal in terms of section 187(3) of the Constitution of Zimbabwe 2013 ('the Constitution').

The appellant is a former judge of the High Court of Zimbabwe having been removed from office by the President on the recommendations of a Tribunal he set up.

What led to the intended establishment of the Tribunal were complaints relating to the appellant's performance as a judge.

In particular, the complaints related to her work output, which was deemed unsatisfactory and below the expected standard. One of the complaints was that the appellant issued a review judgment in respect of criminal proceedings without having properly perused the record of proceedings. As a consequence, she ordered the release, from prison, of a person who had previous convictions which militated against his release.

The position of the fourth respondent, Judicial Service Commission (JSC), was that the appellant's conduct, inter alia, amounted to gross misconduct and/or gross incompetence warranting the referral of the matter to the President in terms of section 187(3) of the Constitution.

It is common cause, that, by letter dated 15 September 2020, the appellant was advised by the Judicial Service Commission (JSC) that she was under investigation for impeachable acts of misconduct.

In response, the appellant's erstwhile legal practitioners, in a letter dated 30 September 2020, wrote back to the Judicial Service Commission (JSC) indicating that the appellant was not obliged to respond to that matter. Their view was that the JSC had no legal authority to deal with the complaints raised against the appellant and that the second respondent (Chief Justice) had no authority to direct the JSC to attend to any complaints against a sitting judge of the High Court.

Further, the letter highlighted, that, in any event, it was premature for the Judicial Service Commission (JSC) to invoke section 187(3) of the Constitution before compliance with the provisions of the Judicial Service (Code of Ethics) Regulations SI107 of 2012 (Code of Ethics).

Consequently, the Judicial Service Commission (JSC) resolved that the question of the appellant's removal from office ought to be investigated by a Tribunal appointed to inquire into the matter in terms of section 187(3) of the Constitution.

It advised the appellant of this resolution by letter dated 12 October 2020.

A day after receipt of the letter, the appellant, through her erstwhile legal practitioners, filed an urgent chamber application under case number HC6128/20 which she subsequently withdrew.

On 26 October 2020, the appellant, through her current legal practitioners, filed yet another application through the chamber book, seeking the Provisional Order which is the subject matter of this appeal. The Provisional Order sought reads as follows:

“INTERIM RELIEF GRANTED

IT IS ORDERED THAT:

1. Pending the final determination of the legality of the fourth respondent's decision to advise the first respondent to establish a Tribunal in the absence of due process, the first respondent be is hereby interdicted from setting up a Tribunal to investigate the question of removing the applicant from office in terms of section 187(3) of the Constitution.

2. In the event that a Tribunal referred to here above is already set up by the first respondent to investigate the applicant's conduct, then, the Tribunal's proceedings be stayed until the determination of the legality of the fourth respondent's decision to advise the first respondent to establish a Tribunal.

That the first, second, third, fourth, and fifth respondents show cause to this Honourable Court why a final order should not be granted in the following terms:

1. The fourth respondent's decision advise to the first respondent to set up a Tribunal to inquire into the question of whether the applicant should be removed as a judge be and is hereby declared unlawful and set aside (sic).

2. It is hereby declared that any disciplinary action against the applicant must be done in compliance with Statutory Instrument 107 of 2012 being the Judicial Services (Code of Ethics) Regulations, 2012 as read with the Constitution of Zimbabwe.”

At the commencement of the proceedings, the fourth respondent (Judicial Service Commission) raised five points in limine which the second and third respondents (Chief Justice and Judge President of the High Court) associated themselves with.

The appellant also raised a point in limine.

On the merits, the appellant contended that she managed to satisfy all the pre-requisites for the granting of an interim interdict. She argued that a proper construction of section 187(3) and section 190(4) of the Constitution, as well as Part III of the Judicial Service (Code of Ethics) Regulations, S.I.107 of 2012 (Code of Ethics) reveals that a judge accused of any act of misconduct is entitled to be subjected to the provisions of the latter enactment before any contemplated referral to the President can be done.

The appellant submitted, that, the interpretation given by the Judicial Service Commission (JSC) to section 187(3) of the Constitution, to the effect that it is empowered to refer such a matter directly to the President without resorting first to the Judicial Service (Code of Ethics) Regulations, SI107 of 2012 (Code of Ethics) will have the effect, inter alia, of not only eroding the independence of the judiciary but also negates the very notion of security of tenure of the judges, deprives the appellant of her right to administrative justice as enshrined in section 68 of the Constitution, results in the negation of her right to protection against unfair discrimination and equal protection of the law in that other judges accused of misconduct were subjected to the Code of Ethics, and, finally that the procedure adopted by the JSC attenuates the principle of certainty in that whereas some judges are first subjected to the Judicial Service (Code of Ethics) Regulations, others, like herself, do not get to enjoy that “two- rung” process.

The appellant further contended, that, the Judicial Service (Code of Ethics) Regulations, SI 107 of 2012 (Code of Ethics) was a direct consequence of section 190(4) of the Constitution.

She also contended, that, the gravity or nature of the alleged infraction was immaterial and irrelevant in so far as the procedure to be followed is concerned.

In her view, the provisions of the Judicial Service (Code of Ethics) Regulations (Code of Ethics) are prescriptive and no departure therefrom is permissible. No distinction is drawn, in terms of the legislation and as far as procedure is concerned, between the disciplinary action against judges in terms of the Code of Ethics vis a vis their removal from office as the latter is a species of the former.

The Judicial Service Commission (JSC), per contra, contended that it did no more than what section 187(3) of the Constitution entitled it to do.

It disputed the interpretation given to the said provision by the appellant and argued that impeachable conduct referred to the President does not have to be preceded by proceedings under the Judicial Service (Code of Ethics) Regulations, S.I. 107 of 2012 (Code of Ethics).

Furthermore, the respondents submitted that it was clear ex facie the record that the appellant was potentially guilty of gross misconduct, or, in the alternative, gross incompetence, and, as such, the existence of a prima facie case against her meant that the provisions of section 187(1)(a) and (b) as read with section 187(3) of the Constitution had been properly triggered by the Judicial Service Commission (JSC).

It was their submission, that, the aforementioned sections relate to impeachable conduct and thus it had a basis to refer the matter to the President.

The court a quo, in a well-reasoned judgment, dismissed all the preliminary points raised by the Judicial Service Commission (JSC) and the appellant.

None of the parties appealed against the court a quo's dismissal of the points in limine.

It will therefore, not be necessary, for the determination of this matter, to relate to the findings of the court a quo on the preliminary points.

On the merits, the court a quo held that in so far as the procedure for dealing with judges accused of acts of misconduct is concerned, section 187(3) of the Constitution and Part III of the Judicial Service (Code of Ethics) Regulations (Code of Ethics) provide distinct dichotomous routes.

The court held, that, section 187 is principally aimed at investigating the suitability or otherwise of the imperiled judge in continuing to hold office in light of the alleged acts of misconduct and the Code of Ethics is mainly aimed at some other disciplinary measures short of removal from office.

It was the court's position, that, the applicability of the abovementioned provisions is a question that is dependent on the gravity of the offence.

It held that the use of the words “gross incompetence” and “gross misconduct” in section 187(3) of the Constitution, which words are absent in section 21 of the Code of Ethics, conveys the notion that it is reserved for indiscretions that are deemed serious. The court concluded, on this point, by finding that:

“The appellant's argument that no distinction can and should be drawn between 'disciplining' of judges and 'removal' of judges cannot be sustained because a reading of those sections clearly conveys such a distinction.”

The court also opined, that, the fact that the outcomes of the two procedures are different lends further credence to the existence of the dichotomy. Whereas, the outcome under section 187 of the Constitution is the possible removal of a judge from office, under the Code of Ethics, there are various possible outcomes.

The court a quo further held, that, if the procedure under the Code of Ethics was meant to be antecedent to the referral in terms of section 187(3) of the Constitution, then, either the Constitution or the Code of Ethics, or both, would have said so.

Sections 21, 24, 25, and 26 of the Code of Ethics make it clear that they are subject to the Constitution.

Further, the Sixth Preamble to the Code of Ethics clearly conveys the meaning that the Code of Ethics was intended to plug the lacuna obtaining before its promulgation, namely, that there was no formal complaints mechanism for conduct falling short of impeachable conduct.

The court also noted that subsection (3) of section 24 of the Code of Ethics makes it clear that nothing contained in it shall be construed as taking away or derogating from the powers bestowed upon a person to make a direct referral for impeachable conduct.

It further found, that, in any event, the Code of Ethics was promulgated in 2012, and, therefore, predates the current Constitution which came into effect a year later.

Concerning the allegations of bias, mala fides, and non-observance of the audi alteram partem rule levelled against the second, third, and fourth respondents (Chief Justice, Judge President of the High Court and the Judicial Service Commission) in handling her matter, the court a quo made a finding that the appellant rejected the invitation to respond to the complaints against her, and, thus, cannot claim that her right to be heard was violated.

To that end, the court a quo held that the appellant did not manage to establish a prima facie right let alone a clear one entitling her to be subjected to the Code of Ethics first before a referral as contemplated under section 187(3) of the Constitution.

In light of that, the court a quo held that it was not necessary to interrogate the remaining requirements for an interim interdict as the application before it did not establish a prima facie right.

In accordance with the above findings, the court a quo dismissed the application with costs.

Aggrieved by the decision of the court a quo, the appellant noted an appeal on the following grounds:

“1. The court a quo erred and misdirected itself in placing reliance on section 187(3) of the Constitution when the principle of subsidiarity required that reliance be on the Judicial Service (Code of Ethics) Regulations 2012 in taking any disciplinary measures against the appellant.

2. The court a quo erred and misdirected itself when it held that the Judicial Service (Code of Ethics) Regulations 2012 is aimed at some disciplinary measure other than the removal of a judge from office but also holding that the outcome of a disciplinary process instituted under the Judicial Service (Code of Ethics) Regulations, 2012 may result in a referral in terms of section 187(3) of the Constitution.

3. The court a quo erred and misdirected itself when it held that section 187(3) of the Constitution 2013 and Part III of the Judicial Service (Code of Ethics) Regulations 2012 provide for different procedures for dealing with the question of misconduct of a sitting judge of the High Court when such distinct procedures are not contained in the Constitution and the Judicial Service (Code of Ethics) Regulations 2012.

4. The court a quo erred and misdirected itself when it held that section 187(3) of the Constitution is reserved for transgressions that are deemed serious and that the Judicial Service (Code of Ethics) Regulations 2012 is reserved for minor transgression when such a distinction is not contained in either the Constitution, the Judicial Services Act, or the Judicial Service (Code of Ethics) Regulations 2012.”

She sought the following relief;

“1. That, the instant appeal succeeds with costs.

2. That, the judgment of the court a quo be set aside and the following be substituted in its place and stead;

'1. Pending the final determination of the legality of 4th respondent's decision to advise the 1st respondent to establish a tribunal in the absence of due process, the 1st respondent be and is hereby interdicted from setting up a Tribunal to investigate the question of removing the applicant from office in terms of section 187(3) of the Constitution.

2. In the event that a Tribunal referred to hereabove is already set up by the 1st respondent to investigate the applicant's conduct, then, the Tribunal's proceedings be stayed until the determination of the legality of the 4th respondent's decision to advise the 1st respondent to establish a tribunal.

3. That this matter be and is hereby remitted to the High Court for continuation of proceedings on the return date.'”

In the concluding paragraph in her heads of argument, the appellant's position was as follows:

“In light of the above, the appellant prays that the appeal succeeds with costs. However, in light of the fact that the interim relief sought has been overtaken by events, it is prayed that the judgment of the court a quo be set aside and the matter be remitted back to the court a quo for determination of the final relief sought.”…,.

At the hearing of the appeal, the court asked counsel for the appellant to first address the court on the question whether the matter before the court had become moot first before addressing the merits of the matter.

The request was made on the basis, that, on the recommendation of the Judicial Service Commission (JSC), the President constituted a Tribunal to consider the removal of the appellant from office. The Tribunal has already conducted investigations and held an inquiry which consequently led to the removal of the appellant from the office of a judge.

Counsel for the appellant submitted, that, the issue of mootness did not arise in the present appeal.

It was her submission, that, when the President acted upon receipt of the referral, he did so in the belief that all due and proper processes had been followed as provided for in the Judicial Service (Code of Ethics) Regulations (Code of Ethics). If those processes were not followed, and the necessary transparent investigations carried out, the referral would have been invalid and everything that followed would be invalid. As such, the matter cannot be moot.

Notwithstanding her submissions that the matter was not moot, and despite the concession in the Heads of Argument, counsel for the appellant submitted that mootness is not a bar to hear a matter. The court retains a discretion to hear the merits of the appeal if it is in the interests of justice to do so. In casu, it was particularly important for the court to give guidelines for referral of a judge to the President.

For authority she relied on the case of Francis Bere v Judicial Service Commission & Ors SC01-22 where this Court proceeded to hear the appeal on the merits after having made a finding that the appeal was moot.

She further submitted, that, in that case, the provisions of the Code of Ethics had been followed. There had been participatory investigations by a panel of three judges which was set up in terms of the Code of Ethics.

On the merits, counsel for the appellant submitted, that, the Code of Ethics was not adhered to, therefore, all the proceedings thereafter were void.

It was her submission that in terms of the principle of subsidiarity, the appellant ought to have been subjected to the subsidiary legislation, therefore, the second respondent ought to have followed the procedure in the Code of Ethics before looking for recourse to the Constitution.

She further submitted, that, the second respondent did not conduct an investigation and failed to ensure that all processes before the referral were followed.

She also submitted, that, the court a quo erred in relying on the constitutional provisions on the investigative part of the proceedings. She maintained that if the legislature intended that there be two processes, one for serious infractions, and the other for non-serious infractions, it would have said so.

Finally, counsel made an application to amend the relief sought. She moved the court to grant an order declaring that the removal of the appellant from office was a nullity.

Per contra, counsel for the first and fifth respondents submitted that the relief the appellant was seeking in the instant appeal had been overtaken by events.

It was his submission that the Tribunal appointed by the President had duly carried out its Constitutional mandate resulting in the removal of the appellant from office. He further submitted that the appellant has taken those proceedings on review in the High Court. She has also filed an appeal in the Labour Court against the decision of the President to remove her from office.

Counsel for the second, third, and fourth respondents submitted that the test in respect of mootness is factual.

That the appellant was no longer a judge of the High Court is a fact. The question is not whether the matter is moot or not because on the facts the matter is moot.

The question should be whether this Court has a basis of exercising its discretion, in the interests of justice, to still hear the matter. He submitted that the following points militate against the exercise of that discretion.

(i) Firstly, the appellant voluntarily attended the Tribunal and fully participated in its enquiry. The Tribunal completed its work and the legal process of her removal from office has occurred. The appellant continues to seek legal remedies in other courts, namely, in the High Court and the Labour Court.

(ii) Secondly, when the appeal was filed, it was open to the appellant to seek an expedited hearing. He submitted that no effort was made to seek such an expedited hearing of the matter, as provided in the Rules, and secure the relief she seeks in her notice of appeal. As a result, this Court is unable to grant the relief sought by the appellant.

(iii) Thirdly, the Judicial Service Commission (JSC) advised the appellant of the complaints against her, provided her with the details of the complaints, and invited her to comment. The appellant, through her erstwhile legal practitioners, took a position that she had no obligation to address the complaint. As a result, the JSC resolved to refer the matter to the President in terms of section 187(3) of the Constitution. The actions of the JSC are unimpeachable. This Court cannot issue a declaratur nullifying the actions of the JSC. He concluded by submitting that there was nothing exceptional about this case warranting this Court exercising its discretion to hear this moot case.

On the merits, counsel submitted that the Code of Ethics makes it clear that it does not purport to supersede section 187(3) of the Constitution. The Code of Ethics recognises the supremacy of the Constitution, in particular sections 21, 24, 25 and 26 of the Code. He further submitted that the Code is limited to administrative complaints and impeachment processes are dealt with in terms of section 187(3) of the Constitution.

The appellant approached the court a quo in an urgent chamber application seeking the Provisional Order outlined above.

As is clear from the Provisional Order, the appellant sought, in the interim, an interdict preventing the President from setting up a Tribunal to investigate the removal of the appellant from office and in the event that it had already been set up, an order staying the proceedings of such Tribunal.

It is common cause that the Tribunal was set up, executed its mandate, and the appellant was removed from being a Judge of the High Court in terms of section 187(3) of the Constitution.

It is on this basis that the respondents take the position that the appeal before the court has been overtaken by events.

At this point in time, it is appropriate to deal with the doctrine of mootness as I believe it could be dispositive of this instant appeal.

A matter is moot if the dispute becomes academic by reason of changed circumstances, thus making the jurisdiction of the court unsustainable.

The issue was comprehensively dealt with by the Constitutional Court in Thokozani Khupe & Anor v Parliament of Zimbabwe & Ors CC20-19…, where it held as follows:

“A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic, by reason of changed circumstances, the Court's jurisdiction ceases and the case becomes moot…,.

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.'”

The above principle was followed in MDC & Ors v Mashavira & Ors SC56-20…, where it was stated:

“…,. A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy between the parties….,. [I]f the dispute becomes academic by reason of changed circumstances, the case becomes moot and the jurisdiction of the court is no longer sustainable.”

In ZIMSEC v Mukomeka and Anor SC10-20…, PATEL JA, at pp6-7, set out a two–stage approach in determining whether or not an appeal is moot. The learned Judge cited the Supreme Court of Canada, in Borowski v Canada (Attorney General) [1989] 1 SCR 342, where it was held that:

“It is first necessary to determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic. If so, it is then necessary to decide if the court should exercise its discretion to hear the case.”

In respect of the second stage of an inquiry on mootness, PATEL JA held, at p7, that:

“The next step in the analysis is to decide whether or not the court should exercise its discretion to hear the case. In that respect, courts are guided by the rationale and policy considerations underlying the doctrine of mootness: Borowski's case, supra.

The overriding consideration is whether or not it is in the interests of justice to hear a moot case. The factors to be taken into account in that regard were lucidly enunciated by the Constitutional Court of South Africa in Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) at para 11:

'…,. Discretion must be exercised according to what the interests of justice require.

A pre-requisite for the exercise of the discretion is that any order which this Court may make will have some practical effect either on the parties or on others. Other factors that may be relevant will include the nature and extent of the practical effect that any possible order might have, the importance of the issue, its complexity, and the fullness or otherwise of the argument advanced.'”…,.

The doctrine is well developed in American law. A case is moot if it:

“…, seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has actually been asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical effect upon a then existing controversy.”

See Ex Parte Steel 162 Fed. 694, 701 (N.D.Ala. 1908).

Furthermore, a case is moot:

“If the parties are not adverse, if the controversy is hypothetical, or if the judgment of the court, for some other reason cannot operate to grant any actual relief…, and the court is without power to grant a decision.”

See Diamond, Sidney A. “Federal Jurisdiction to Decide Moot Cases” University of Pennsylvania Law Review Vol. 94…,.

Barron and Dienes Barron J (eds) Barron J and Dienes T (eds) Constitutional Law (West St Paul, Min 1995) put it succinctly when they observed that "a case or controversy requires present flesh and blood dispute that the courts can resolve."

In South African Jurisprudence, mootness is when a matter “no longer presents an existing or live controversy”: see National Coalition for Gay and Lesbian Equality & Ors v Minister of Home Affairs 2000 (2) SA 1 (CC)…,.

Section 16(2)(a)(i) of the South African Supreme Court Act provides as follows:

“(i) When, at the hearing of an appeal, the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone.”

It can be gathered from the above authorities that mootness essentially restricts the court's jurisdiction to hear or determine a matter, particularly if giving the judgment in that matter will produce no tangible result but merely an opinion. It is based on the notion that judicial resources ought to be utilised efficiently and not dedicated to advisory opinions.

However, the fact that a matter is moot is not an absolute bar for the court to decide an appeal where the interests of justice so require.

An analysis of decisions in which Zimbabwean Courts proceeded to determine matters despite the fact that they had become moot exposes the application of the foregoing principles.

In the case of Stevenson v Minister of Local Government & Ors 2002 (1) ZLR 498 (S)…, the court heard a matter that was moot for the purpose of determining the party liable to pay costs. SANDURA JA held as follows:

“In the circumstances, the learned judge in the court a quo should have dealt with the issues raised in the appellant's application.

However, it is pertinent to note that after the appeal in this matter had been noted, mayoral and council elections for Harare were held in March 2002. It follows, therefore, that the reason for the appellant's application has now fallen away.

Nevertheless, a determination of the issues raised in the application is essential for the purpose of determining which party should pay the costs of the application in the court a quo….,.”…,.

See also Francis Bere v Judicial Service Commission & Ors SC01-22.

The South African courts have attempted to outline factors to be considered when a court wishes to break through the veil of mootness to decide an appeal that is moot for justice's sake. In VINPRO NPC v The President of the Republic of South Africa & Ors (741/2021) [2021] ZAWHCHC 149 the court opined as follows:

“[50] Moreover, this Court has proffered further factors that ought to be considered when determining whether it is in the interests of justice to hear a moot matter. These include -

(a) Whether any order which it may make will have some practical effect either on the parties or on others;

(b) The nature and extent of the practical effect that any possible order might have;

(c) The importance of the issue;

(d) The complexity of the issue;

(e) The fullness or otherwise of the arguments advanced; and

(f) Resolving the disputes between different courts.”

In casu, under the first consideration in the test for mootness, it is apparent from the record that the appellant sought an order in the court a quo interdicting the President from establishing a Tribunal to investigate the question of removing her from office in terms of section 187(3) of the Constitution, and a stay of the Tribunal proceedings in the event that it had already been set up, pending the determination of the legality of the Judicial Service Commission's decision to advise the President to establish a Tribunal.

It is common cause that the Tribunal was set up and its proceedings were conducted and concluded - with the full participation of the appellant.

At this point, the issue of the Judicial Service Commission's referral of the matter to the President, the setting up of the Tribunal by the President, and the legality thereof has undoubtedly been overtaken by events.

The judgment, if rendered in favour of the appellant 'cannot operate to grant any actual relief' to her. There is no longer any 'present flesh and blood dispute that the court can resolve'.

In light of the above, it is my position that the appeal before this court is now moot.

Additionally, the fact that the appellant belatedly sought to amend the relief sought confirms that the matter is indeed moot and the relief sought no more than a brutum fulmen.

It must have been clear to her that it would not be competent for this Court to grant the relief she sought in her Notice of Appeal as conceded in the last paragraph of her Heads of Argument.

The tangible and concrete dispute between the parties had disappeared by the time the appeal was heard rendering the issues academic.

This is an application brought under section 24(1) of the Constitution of Zimbabwe (hereinafter “the Constitution”) on the basis that the applicant's rights, enshrined in sections 18(1) and 18(1a), have been contravened.

The applicant is a citizen of Zimbabwe domiciled in this country and has always regarded this country as his only and permanent home. He is a registered voter in Zaka East Parliamentary Constituency and also a member of the non-governmental organisation, the Centre for Election Democracy in Southern Africa, based in Harare.

The first respondent is the President of Zimbabwe, Robert Gabriel Mugabe, who is cited in his official capacity and as the office-bearer responsible for fixing the date for Parliamentary, Presidential, and local authority elections (hereinafter called “the harmonised elections”). He is also cited in his capacity as a principal of the Inter-Party Political Agreement (commonly referred to as the Global Political Agreement (“GPA”) between his political party, the Zimbabwe African National Union (Patriotic Front) ("ZANU-PF") and the two formations of the Movement for Democratic Change ("MDC"), referred to in Schedule 8 to the Constitution.

The second respondent is Morgan Richard Tsvangirai, who has been cited in his capacity as the Prime Minister of Zimbabwe, who also is a signatory to the Global Political Agreement (GPA), representing his formation of the MDC.

The third respondent is Arthur Guseni Oliver Mutambara, who has been cited as the Deputy Prime Minister of Zimbabwe and also due to the fact that he is a signatory to the Global Political Agreement (GPA).

The fourth respondent is Welshman Ncube, a Minister in Government and cited herein in his capacity as the representative of the other formation of the MDC, which organisation is a party to the Global Political Agreement (GPA) and is represented in the current coalition government.

The fifth respondent is the Attorney-General, who has been drawn into these proceedings in view of their constitutional nature and in his capacity as the principal legal advisor to the Government.

On 2 May 2013, the applicant issued an urgent Court Application against the above five respondents.

Before any opposition was filed to the court application, the applicant was, on 6 May 2013, directed by the Registrar of the Supreme Court of Zimbabwe to file a separate urgent Chamber Application seeking leave for the urgent hearing of his Court Application, if such was his wish.

The application proceeded to do so in case Number SC157/2013. This urgent Chamber Application was subsequently heard on 15 May 2013. On 17 May 2013, the order sought by the applicant in the urgent Chamber Application was granted.

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

The applicant subsequently filed a replying affidavit as well as a notice of an amendment of the draft order to his principal application.

The amended order sought is as follows:

"(1) The First Respondent be and is hereby directed to forthwith proclaim an election date for a Presidential election, general election, and elections for members of the governing bodies of local authorities in terms of section 58(1) of the Constitution of Zimbabwe.

(2) The elections referred to in paragraph 1 hereof shall be conducted no later than the 30th day of June 2013.

The elections referred to above shall be conducted no later than (the) 25th day of July 2013.

(3) Any party (parties) who oppose(s) this application shall bear the costs of this suit jointly and severally, the one paying the other to be absolved."

Read together, the papers filed of record seem to pose the following as issues which fall for determination:

(a) Whether the applicant has locus standi to approach this Court in terms of section 24(1) of the Constitution of Zimbabwe;

(b) When do harmonised general elections fall due in terms of the laws of Zimbabwe?

(c) Whether the applicant has made out a case for the order sought.

Each issue will now be dealt with in turn....,.

It is common cause amongst all the parties that Parliament shall stand dissolved, by the effluxion of time, on 29 June 2013.

Whilst the papers before this Court are voluminous and at times unnecessarily argumentative, the issue before this Court is in fact a simple one, which can be reduced to one question: When, after the accepted dissolution of Parliament, by the effluxion of time, in terms of the Constitution, should the harmonised elections be held?

The response to this rather simple and straightforward question has elicited contradictory responses from the second and fourth respondents on the one hand, and the applicant, on the other. The responses from the second and fourth respondents also show a serious divergence of opinion between them.

According to the second respondent, who is the Prime Minister and an important part of the Executive:

“What is plain from section 58(1) of the Constitution of Zimbabwe, as read with other relevant sections, is the fact that if the terms of Parliament, local government authorities, and of the President expire on 29 June 2013 through the natural passage of time (as opposed to induced dissolution or prorogation) elections must be conducted within four (4) months of the automatic dissolution of Parliament.”…,.

The fourth respondent, who himself is a Minister of Government and leader of a party to the Global Political Agreement, takes the following similar position when he states:

“Alternatively, if the President does not dissolve Parliament and allows it to automatically dissolve by operation of law on the last day of its five year term, in that event, the President must cause an election to be held within four months of the date of the automatic dissolution of Parliament.”…,.

He then goes on to say:

“The Constitution permits that an election be held anytime within four months after the dissolution of Parliament by operation of law at the expiration of its five year term, and, hence, that Constitution, by so providing, contemplates and allows that there may be no Parliament between its automatic dissolution and the holding of an election within four months of that dissolution.”…,.

The first respondent disagrees with the interpretation by the second and fourth respondents, saying it is not supported by the Constitution or the canons that govern its interpretation. Instead, the first respondent agrees with the interpretation placed by the applicant on sections 58 and 63 of the Constitution.

Section 58(1) of the Constitution simply states:

"(1) A general election, and elections for members of governing bodies of local authorities, shall be held on such day, or days, within a period not exceeding four months after the issue of a proclamation dissolving Parliament under section 63(7) or, as the case may be, the dissolution of Parliament under section 63(4) as the President may, by proclamation in the Gazette, fix.”

Now, it is clear that section 58(1) of the Constitution, read in its ordinary sense, deals with the timing of elections or the fixing of dates for elections by proclamation.

If one were to pose the question “when are harmonised general elections to be held?” and seek an answer from the above quoted provisions of section 58(1) of the Constitution, two possible answers emerge, depending on punctuation and emphasis and are juxtaposed below as READING 'A' and 'B':

"PART 6

(1) A general election, and elections for members of the governing bodies of local authorities, shall be held on:

(i) Such day or days within a period not exceeding four months after the issue of a proclamation dissolving Parliament under section 63(7); or

(ii) As the case may be, the dissolution of Parliament under section 63(4) as the President may, by proclamation in the Gazette, fix."

"PART 6

(1) A general election, and elections for members of the governing bodies of local authorities, shall be held on such day, or days, within a period not exceeding four months after:

(i) The issue of a proclamation dissolving Parliament under section 63(7); or

(ii) As the case may be, the dissolution of Parliament under section 63(4) as the President may, by proclamation in the Gazette, fix."

There could be any number of other variations the section 58(1) of the Constitution text can be broken into, but, the two scenarios above will suffice for the purpose of this case.

Both Reading 'A' and Reading 'B' answer to the question when elections are to be held but with one putting the emphasis on the preposition 'on' and the other on 'after'.

Both interpretations are compelling.

Adopting one interpretation or the other results in starkly different outcomes. In one case, elections must be held within the life of Parliament. In the other case, elections may be held up to four months after the dissolution of Parliament.

A Court faced with competing possible interpretations of a constitutional provision must call into aid principles or canons of construction. In this regard, FIELDSEND CJ had this to say in Hewlett v Minister of Finance 1981 ZLR 571:

“…, in general, the principles governing the interpretation of a Constitution are basically no different from those governing the interpretation of any other legislation. It is necessary to look to the words used and to deduce from them what any particular section, phrase, or word means, having regard to the overall context in which it appears.”

Accordingly, section 58(1) of the Constitution must be examined, not in isolation, but having regard to the overall context in which it appears.

In this regard, it is important to immediately quote section 63 of the Constitution referred to in this provision, emphasizing the key subsections 63(7) and 63(4):

"63 Prorogation or Dissolution

(1) The President may at any time prorogue Parliament.
[Subsection substituted by section 6 of Act No.23 of 1987 (Amendment No.7)]

(2) Subject to the provisions of this Constitution, the President may at any time dissolve Parliament.
[Subsection substituted by section 6 of Act No.23 of 1987 (Amendment No.7)]

(3)…,.
[Subsection repealed by section 6 of Act No.23 of 1987 (Amendment No.7)]

(4) Parliament, unless sooner dissolved, shall last for five years, which period shall be deemed to commence on the day the person elected as President enters office in terms of section 28(5) after an election referred to in section 28(3)(a), and shall then stand dissolved:

Provided that, where the period referred to in this subsection is extended under subsection (5) or (6), Parliament, unless sooner dissolved, shall stand dissolved on the expiration of that extended period.
[Subsection inserted by section 14 of Act No.11 of 2007 (Amendment No.18)]

(5) At any time when Zimbabwe is at war, Parliament may from time to time extend the period specified in subsection (4) by not more than one year at a time:
Provided that such period shall not be extended under this subsection for more than five years.

(6) At any time when there is in effect a declaration under section 31J(1), Parliament may from time to time extend the period specified in subsection (4) by not more than six months at a time:
Provided that such period shall not be extended under this subsection for more than one year.
[Subsection amended by section 26 of Act No.23 of 1987 (Amendment No.7)]

(7) Subject to the provisions of subsection (4), any prorogation or dissolution of Parliament shall be by proclamation in the Gazette, and, in the case of a dissolution, shall take effect from the day preceding the day or first day, as the case may be, fixed by proclamation in accordance with section 58(1) for the holding of a general election.

(8) On the dissolution of Parliament, all proceedings pending at the time shall be terminated, and,  accordingly, every Bill, motion, petition, or other business shall lapse."…,.

Although on the face of it sections 58 and 63 of the Constitution deal with distinct but related constitutional matters, the fixing of dates for elections on the one hand and the life of Parliament on the other, the inter-relatedness of these matters creates a maze of back and forth cross-referencing between section 58(1) and sections 63(4) and 63(7) of the Constitution.

These provisions are also subject to stipulations in the Constitution itself and the Electoral Act, especially with regard to time limits.

However, there are some conclusions that can be teased out of this maze to aid the interpretation of the provision in question:

(a) There must be a proclamation fixing the dates for elections which is issued by the President in the Gazette according to sections 58(1) and 63(7) of the Constitution.

(b) Section 63(7) is subjected to the provisions in section 63(4) in the sense that the President may not dissolve Parliament and fix dates which fall outside the life of Parliament. In other words, elections following a Presidential dissolution of Parliament must be held before the expiry of the life of that Parliament.

There are other provisions in section 64(4) of the Constitution which might have necessitated the subjection of section 63(7) to it, viz: that dissolution of Parliament, following expiry of its extended period, is automatic, whereas section 63(7) requires all other dissolutions to be by proclamation.

(c) The fixing of election dates must take into account the mandatory time limits set out in the Constitution and the Electoral Law.

From the above conclusions, one can now pose a number of useful questions and try to answer them.

What is this proclamation that is required for both the Presidential and the automatic dissolution of Parliament? What is its purpose?

From a common sense position, one could say a proclamation is issued in advance, giving a period of notice and time, prior to the Presidential or automatic dissolution, in order to afford the electoral authorities and the public time to prepare for the elections.

That appears to also coincide with the legal requirements teased above.

However, to get a real life 'feel' of this phenomenon called 'proclamation' I dug up Statutory Instrument 7A of 2008, which, of course, the Court is perfectly entitled to take judicial notice of.

It was issued on 24 January 2008, dissolving Parliament “with effect from midnight, the 28th March 2008” thus giving the electoral authorities and the public slightly over two months to prepare for the elections.

In that case, the night of dissolution was perfectly followed by the day, or days, of elections as stipulated in section 63(7) of the Constitution. The proclamation goes on to fix the dates, places, and times of the sitting of the nomination courts and the presiding officials thereof throughout the country for Presidential, Parliamentary, and local government elections.

This proclamation was issued by the President using his discretion to dissolve Parliament and call for elections in terms of section 63(7) of the Constitution.

It is important to note, that, the proclamation is prospective, not retrospective, pointing to a date in future when Parliament will stand dissolved and complying with all statutory time limits.

Since the date for the automatic end of the life of Parliament is known in advance, it would be perfectly feasible for a President to anticipate such a date and issue a similar proclamation announcing that Parliament shall stand dissolved by midnight of that day, followed by elections on the following day, or days, and complying with all statutory time limits.

Not only would it be feasible, but, in my view, it would be the proper, constitutional, and legal thing to do.

In fact, the question may be asked: since the date of automatic dissolution is known in advance, what is the purpose of granting the President an additional four months within which to proclaim the dates for elections after dissolution of Parliament?

Is it to shield that decision from Parliamentary scrutiny or to reward the President for having allowed Parliament to run its full course, by granting the Executive four months to rule by decree?

The mind boggles at this strange effect of adopting Reading 'B' of section 58(1) of the Constitution.

The second scenario of interpreting section 58(1) of the Constitution also implies that the President must wait until the life of Parliament would have expired in terms of section 63(4) and then issue a proclamation recognising that fact and fixing dates within four months of the event.

The expiry of the life of Parliament would have passed silently without notice to all concerned, but, with a dramatic effect of creating a deformed State without Parliament for up to four months.

As would be shown below, this would lead to an absurdity and glaring anomalies.

There are two approaches open to a Court faced with apparent absurdities in the construction of statutes - the narrow and the wider approach.

The narrow approach was articulated in The Queen v Judge of the City of London Court [1892] QBD 273 by LORD ESHER as follows:

“If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the legislature has committed an absurdity. In my opinion, the rule has always been this, if the words of an Act admit of two interpretations, then, they are not clear and if one interpretation leads to an absurdity, and the other does not, the Court will conclude the legislature did not intend to lead to an absurdity and will adopt the other interpretation.”

Under the narrow approach, the Court chooses between the two possible interpretations, the one which does not lead to an absurdity.

In this case, it would be the first interpretation or Reading 'A' of section 58(1) of the Constitution.

In Venter v Rex 1906 TS 910…, INNES CJ expressed the wider approach thus:

“That being so, it appears to me that the principle we should adopt may be expressed somewhat in this way: that, when to give the plain words of the statute their ordinary meaning would lead to absurdity so glaring that it could never have been contemplated by the legislature, or where it would lead to a result contrary to the intention of the legislature, as shown by the context or by such other considerations as the Court is justified in taking into account, the Court may depart from the ordinary effect of the words to the extent necessary to remove the absurdity and to give effect to the true intention of the legislature.”

According to the “wider approach” the Court has a broad discretion in removing an absurdity, being guided, ultimately, by the intention of the Legislature, or, in constitutional terms, by the intention of the framers of the supreme law.

Once an ambiguity or absurdity has been established, it would appear that the proper approach to adopt would be the wider one, where the Court calls into aid historical, schematic, teleological, and purposive approaches to interpretation.

In the case of Buchanan & Co v Babco Ltd (C.A.) [1977] QBD 208…, LORD DENNING followed precisely this method of interpretation, long adopted by the European Court of Justice at Luxembourg, thus:

“They adopt a method which they call in English by strange words, at any rate they were strange to me, the 'schematic and teleological' method of interpretation. It is not really so alarming as it sounds. All it means is that the judges do not go by the literal meaning of the words, or by the grammatical structure of the sentence.

They go by the design or purpose which lies behind it.

When they come upon a situation which is, to their minds, within the spirit, but not the letter, of the legislation, they solve the problem by looking at the design and purpose of the legislation - at the effect which it was sought to achieve.

They then interpret the legislation so as to achieve the desired effect.

This means that they fill in gaps, quite unashamedly, without hesitation. They ask simply: what is the sensible way of dealing with this situation so as to give effect to the presumed purpose of the legislation?

To our eyes, shortsighted by tradition, it is legislation, pure and simple. But to their eyes, it is fulfilling the true role of the courts. They are giving effect to what the legislature intended, or may be presumed to have intended. I see nothing wrong with this. Quite the contrary.”

If the framers of the Constitution wanted Zimbabwe to function without a Parliament for four months, as suggested by the second and fourth respondents, they surely would have said so in clear and explicit terms and they would not have left this to speculation and interpretation. The Constitution itself states emphatically in section 52:

“Provided that…, no law shall be deemed to amend, add to or repeal any provision of this Constitution unless it does so in express terms.”

Therefore, the only interpretation that can be given to this section is one that favours constitutionalism.

It is common cause that the current Constitution is based on the fundamental principles of separation of powers between the three arms of State: the Executive, the Judiciary and the Legislature. This principle is entrenched in the Constitution in the various sections which state, in peremptory terms, that there shall be a President, a Parliament, and a Judiciary.

Nowhere in the Constitution is there an excuse to function without any one of these branches for an extended period of time.

Whatever exceptions are dictated by transitional imperatives of the going out and coming in of governments, these are always kept at the minimum possible.

In fact, so important are the tripartite pillars of State, that, even in a time of emergency or war, these three institutions are preserved: see sub-sections 63(5) and (6) of the Constitution.

The principle of constitutionalism, which we referred to earlier, is embodied in section 3 of the Constitution which states:

“This Constitution is the supreme law of Zimbabwe, and, if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void.”

If one applies both the doctrine of separation of powers and constitutionalism, it is inconceivable that an interpretation that permits or allows for any extended period without one or other arms of State, in this case Parliament, can be sustainable.

To exist too long without a Parliament would be tantamount to shredding the Constitution and inviting a state of lawlessness and disorder.

It would, with respect, be tantamount to an “annihilation” of the Constitution, in the words of MALABA JA…, in Mike Campbell (Pvt) Ltd and Another v Minister of Lands and Another 2008 (1) ZLR 17 (S).

If section 58 of the Constitution is a repeal or amendment of the peremptory requirement that “there shall be a Parliament" it should have said so explicitly.

It does not do this.

It is also instructive to note, that, in terms of section 158 of the new incoming Constitution, the timing of elections is such that they must be held before the expiry of the life of Parliament, thus:

"158 Timing of Elections

(1) A general election must be held so that polling takes place not more than –

(a) Thirty days before the expiry of the five-year period specified in section 143."…,.

The submission that the mischief of rule by decree, consequent upon no elections being held by 29 June 2013, is obviated by the continuation in office of both the President and Cabinet, in terms of section 29(1) of the Constitution, totally misses the point, that, what is at issue is rule by the Executive in the absence of the checks and balances of a Parliament.

It matters not whether the rule by decree is that of a single individual or that of a group, such as a Cabinet. The purpose of this section is to allow a smooth handover between the retiring and the incoming Executive in the shortest possible time.

Its existence is also further proof of the need to ensure that the period between the dissolution of one Parliament and the inauguration of the next is as short as possible.

Furthermore, the applicant is correct in submitting, that, the fourth respondent fails to appreciate that the over-arching philosophy in section 31E(2) of the Constitution is in fact constitutionalism and not proof that governance without Parliament is acceptable.

The section is an exhortation to anyone appointed as Vice-President, Minister or Deputy Minister (from outside Parliament) to become Members of Parliament within three months.

The only time when such officials are allowed to exceed those three months is when during that period Parliament is dissolved (thus frustrating him or her from becoming a member). Only then can the period be extended to “until Parliament first meets after dissolution”.

In fact, this provision pre-supposes the prior existence of Parliament and not its wholesale absence, and caters for a few desired members of the Executive who may not have made it to Parliament.

It is also instructive to have recourse to the history of this provision.

The original provision stated that the terms of office of Vice-Presidents, Ministers or Deputy Ministers terminated on their ceasing to be Members of Parliament, thus emphasising the centrality of an extant Parliament in the composition and functioning of the Executive in a democratic dispensation.

Section 31E of the Constitution reads:

“31E Tenure of office of Vice-Presidents, Ministers and Deputy Ministers

(1) The office of a Vice-President, Minister or Deputy Minister shall become vacant –

(a) If the President removes him from office; or

(b) If he resigns his office by notice in writing addressed and delivered to the President; or

(c) Upon the assumption of office of a new President.
[Subsection amended by section 9 of Act No.15 of 1990 (Amendment No.10)]

(2) No person shall hold office as Vice-President, Minister or Deputy Minister for longer than three months unless he is a Member of Parliament:
Provided that if during that period Parliament is dissolved, he may continue to hold such office without being a Member of Parliament until Parliament first meets after the dissolution.
[Subsection substituted by section 2 of Act No.31 of 1989 (Amendment No. 9)]"

In the context of the GPA-based Government of National Unity (GNU), not to be confused with the animal gnu with an ox-like head and a tufted tail, and, ironically, also an inhabitant of the Savannas of Africa, whose existence is premised on political parties represented in Parliament, the question arises as to what the justification, constitutionally, of its continued existence becomes once Parliament is no more.

It becomes a Government made up of political parties previously represented in Parliament! And what would that say to other political parties patiently waiting for their chances at the polls?

In conclusion, therefore, the proper construction of section 58(1) of the Constitution is that election dates should be fixed and notified, whether pursuant to Presidential dissolution or automatic dissolution of Parliament, in such a way that elections are held within the life of Parliament on a day/days immediately following its dissolution.

The setting of these dates has to take into account the requirements of the Constitution and the Electoral Act, which stipulate a period of at least forty-four days between proclamation and actual holding of elections.

In terms of the provisions of the new Constitution, which came into force on publication day, section 157(3) of the Constitution, the minimum period is forty-four days, thus:

"157(3) The Electoral Law must provide for the nomination of candidates in any election to take place at least fourteen days after the publication of the proclamation calling for that election. Polling must take place at least thirty days after the nomination of candidates.”...,.

In this application, the applicants seek an order declaring that the Parliament of Zimbabwe (“Parliament”) and the President of the Republic of Zimbabwe (“the President of Zimbabwe” or simply 'the President') have failed to fulfil certain constitutional obligations delineated in section 328 of the Zimbabwe Constitution in passing Constitution of Zimbabwe Amendment (No.2) Act 2021 (“the Constitution Amendment Act”).

More specifically, the applicants allege that the Bill that was eventually passed by Parliament, on 7 May 2021, contained a number of major and material amendments to the original Bill.

Maintaining that the Bill that is passed by Parliament must be the same Bill as that originally gazetted, they seek, as consequential relief, an order setting aside the entire Constitution Amendment Act; alternatively, an order striking down the particular sections of the Constitution Amendment Act which they consider to have been irregularly enacted.

Various objections were taken in limine by the respondents, both in their opposing papers and heads of argument. The applicants also raised a number of preliminary points arising from the opposing papers filed by the respondents.

The court, of its own motion, invited Ms Sanhanga to appear as amicus curiae, and, consequent to that invitation, she filed heads of argument dealing with the various contentions raised by the parties.

Having considered the facts of this matter in their totality and the submissions by the parties, as well as amicus curiae, I reach the conclusion, that, the Constitution Amendment Act was properly passed.

The application must therefore fail....,.

The first applicant, Edwin Mushoriwa (“Mushoriwa”) is a Member of Parliament for the Dzivarasekwa Constituency in Harare, having been so elected in the 2018 harmonised elections.

The second applicant, Firinne Trust operating as Veritas (“Firinne Trust”), is a trust constituted in accordance with the laws of this country. It is a human rights organisation involved in the advocacy of human rights and constitutionalism in Zimbabwe. It further states that part of its mandate is to publicise the work of Parliament and analyse Bills and legislation to ensure adherence to constitutional principles and respect for human rights.

The third applicant, Brian Crozier (“Crozier”), is a registered legal practitioner, who, for many years, worked as the Chief Legal Draughtsman in the Ministry of Justice, Legal and Parliamentary Affairs. With others, he was involved in the drafting of the 2013 Constitution. He states that he has devoted much of his life in defending the rule of law and human rights.

The first respondent, the Parliament of Zimbabwe (“Parliament”) is the organ of State that is charged with the responsibility of initiating, preparing, considering, and rejecting legislation. Its legislative authority is exercised through the enactment of Acts of Parliament. The Legislature of Zimbabwe consists of Parliament which passes Bills and the second respondent, the President of Zimbabwe, who assents to and signs Bills presented to him by Parliament to enable Bills to become Acts of Parliament.

The Constitution of Zimbabwe Amendment (No.2) Bill (“the Constitution Amendment Bill”) was gazetted as Bill HB23/2019 on 31 December 2019 through General Notice 216/2019. It was eventually passed by Parliament on 7 May 2021.

It is common cause, that, during its second reading, the Minister of Justice, Legal and Parliamentary Affairs, in response to points made during the debate, gave notice that he would be moving amendments to the Bill at the Committee Stage scheduled for the following day. The suggested amendments were published in the order paper for the following day. In addition to the amendments proposed by the Minister, other amendments were proposed from the floor.

These amendments were accepted and adopted during the Committee Stage.

It is these amendments and their constitutionality that the applicants take issue with.

In his founding affidavit, Edwin Mushoriwa states that the Bill that was eventually passed by Parliament, on 7 May 2021, contained major and material amendments that were incorporated into the original Bill.

He states, that, it is unlawful for Parliament to pass a Constitutional Bill which is not, in express terms, the same as that which was originally gazetted in terms of section 328(3) of the Constitution. In other words, so he averred, the Bill that is passed by Parliament must be the same Bill as that originally gazetted.

Because the Bill that was eventually passed contained major amendments, it became materially different from the original Bill and was, consequently, invalid.

He avers that where, as in this case, there are major and material amendments to a Constitutional Bill that has been gazetted in terms of section 328(3) of the Constitution of Zimbabwe, then, such amendments should be gazetted for a further period of ninety (90) days in terms of the same section and subjected to further debate by members of the public in public meetings and through written submissions as provided for in subsection (4) of section 328 of the Constitution.

In failing to ensure that section 328 of the Constitution was complied with, both Parliament and the President failed to fulfil the constitutional obligation to pass a Bill that complied with section 328 of the Constitution.

The Bill was passed by both the National Assembly and the Senate in May 2021 and was signed and gazetted into law by the President on 7 May 2021 as Constitution of Zimbabwe Amendment (No.2), Act No.2 of 2021.

The applicants itemise the amendments they say were material that were introduced at the Committee Stage of Parliament as being the following:

(a) The proviso that was added to section 124 of the Constitution relating to a proposal by Priscilla Mushonga, for political parties to ensure that ten of the sixty women members would be persons under the age of thirty five; that women with disabilities are represented on party lists, and young women with disabilities are represented on their party lists in terms of an Act of Parliament.

(b) The amendment to section 180 of the Constitution which now made provision that an appointment of a Judge could be made by the President whenever it becomes necessary to do so rather than whenever a vacancy arose.

(c) The amendment to section 186 of the Constitution increasing the retirement age of Judges from 70 to 75 years subject to an election by the Judge to continue and approval by the President. It further provided, that, notwithstanding the provisions of section 328(7) of the Constitution, the amendment would apply to the continuation in office of the Chief Justice, Deputy Chief Justice, Judges of the Constitutional Court and Supreme Court.

(d) The amendment to section 199 providing that 10% of persons to be employed in the public service would be persons with disabilities.

(e) The amendment to section 268 providing that members of a provincial council should include ten women elected by a system of proportional representation.

(f) The amendment to section 327 excluding from Parliamentary scrutiny loans and agreements referred to in section 300(3) and (4) of the Constitution.

The notice of opposition was deposed to by the Speaker of Parliament, Jacob Mudenda.

In his opposing affidavit, he disputed that Parliament was required to re-gazette the amendments that were incorporated into the original Bill or that there was an obligation, on the part of Parliament, to invite members of the public, once again, to express their views in respect of the same.

He stated that there is no provision in the Constitution which requires amendments to be re-gazetted or subjected to further public meetings and consultation. It was his further contention, that, had the intention been that a gazetted Bill should be passed without amendments, the section in question would have stated accordingly.

In any event, so he argued, there would be no purpose in having parliamentary debates if Parliament is not allowed, at the end of the day, to make amendments where it deems fit. Such an interpretation of section 328 of the Constitution would lead to an absurdity.

He further averred, that, Parliament did, in fact, comply with the provisions of section 328(3) of the Constitution.

The Speaker duly gazetted the Bill as required by section 328(3) of the Constitution. Thereafter, pursuant to subsection (4), Parliament duly invited members of the public to express their views on the Bill, both in public meetings and through written submissions. He further stated, that, the amendments came about as a result of parliamentary debate and that the amendments did not, in any event, change the complexion of the Bill.

Endorsing the Bill with obvious shortcomings would have constituted a failure on the part of Parliament to perform its constitutional obligation.

He further stated, that, since there is no provision which prohibits Parliament from making amendments to a Constitutional Bill, the matter does not therefore fall within the ambit of section 167(2)(d) of the Constitution.

The opposing affidavit of the President was deposed to by the Attorney-General who has averred that he has been authorised by the President to depose to the affidavit.

The Attorney-General has taken a number of preliminary points:

(i) First, that the application is fatally defective, having been brought in terms of section 16(2)(d) of the Constitution, which is a non-existent provision.

(ii) Second, that not having alleged a contravention of their fundamental rights espoused in Chapter 4 of the Constitution, the applicants have no legal standing to challenge the validity of the Constitution Amendment Act.

(iii) Third, that the same matter is pending before this court in the application filed by the second applicant jointly with Eric Matinenga and Ors in CCZ14/21. The matter is therefore already pending before this court and the present application ought therefore to be dismissed with costs.

(iv) Fourth, that Brian Carston Brown has no authority to bring these proceedings on behalf of Firinne Trust.

The resolution attached to the founding affidavit gives general authority to the director of the Trust, one Dr Ingram Thorpe, to institute court proceedings, which she did in case number CCZ14/21. Brian Carston Brown was given alternative authority to depose to an affidavit only in situations where Dr Thorpe would have failed to do so.

(v) Fifth, that Firinne Trust, being a trust, has not established that it has been given legal capacity, in terms of its constitution, to institute proceedings in its own name as opposed to the names of its trustees. The assertion that it has power to sue and be sued remains a bald one.

On the merits, the Attorney-General states that he does not accept that there were material differences between the Bill that was gazetted and the Bill that was eventually passed.

Further that, in any event, there is nothing in the Constitution which prevents Parliament from effecting amendments to a Bill that is passed as a law.

He also submits that no attempt has been made to identify the specific constitutional obligation that is alleged to have been breached by Parliament or the President.

He has further stated, that, the Bill in question was subjected to all the necessary requirements in terms of section 328 of the Constitution of Zimbabwe.

There is no constitutional requirement for any amendments effected to a Bill to be gazetted for the second time.

The averments made by the applicants, in their founding affidavits, show that there was publication of the Bill and interested persons were given the opportunity to make contributions in respect of the contents of the Bill.

He argues, that, the applicants are therefore introducing an additional constitutional requirement where none exists.

He states, that, taken to its logical conclusion, the proposition by the applicants is that amendments that are proposed after gazetting must themselves constitute a separate Constitutional Bill and become subject to further gazetting and the ninety-day notice in the Gazette.

On the amendments introduced during the Committee Stage, he submits that there is nothing in the Constitution that precludes Parliament from incorporating into the Bill suggestions made by members of Parliament during the Committee Stage. The intention of having debates in Parliament is to ensure that the Bills are fine-tuned, adjusted, and amended to suit the needs of society.

In their answering affidavits, the applicants state that the President has duties that are defined in Part 2 of Chapter 5 of the Constitution. Section 90(1) of the Constitution makes it clear that he must uphold, defend, obey, and respect the Constitution. To the contrary, they allege that he and Parliament are responsible for its mutilation.

The applicants also take issue with the affidavit deposed to by the Speaker on behalf of Parliament.

Accepting that the Speaker is the head of Parliament, they state, however, that he is not Parliament, which consists of two chambers. The two houses should have separately resolved to defend this matter and given him specific authority to defend this application.

They further argue, that, the effect of introducing material amendments at the Committee Stage of Parliament is to deny the imperator prescribed in subsections (2), (3) and (4) of section 328 of the Constitution.

A holistic and contextual construction of section 328 of the Constitution is imperative. It must be one that seeks to protect the Constitution and not destroy it.

The applicants accept that Parliament has the right to debate a Bill and to reject some of its provisions. But, they do not accept that Parliament, at the instance of the executive, or anyone else, can introduce material amendments that were not part of the original Bill when gazetted.

Where there is a counter-proposal in the ensuing debate in Parliament, the executive must go back to the drawing board and re-gazette a fresh amendment arising out of those consultations.

In other words, the Bill presented and gazetted in terms of section 328(1), (2) and (3) of the Constitution cannot have amendments that by-pass the obligation for public participation as well as the obligation for the Speaker to give at least ninety days notice of such Bill in the Gazette specifying the precise terms of the Bill.

The applicants also take the point, that, it is not competent for the Attorney-General to depose to an affidavit on behalf of the President who is his client.

On the point taken by the President, that, the applicants cannot approach this court in terms of section 16 (2)(d) of the Constitution, the applicants say that this is an “ipse dixit…, raised by hired guns, acting on behalf of the 2nd respondent, who has no morality, no conscience, no decency other than their bottom line.”

They further state, that, the objection is “nothing but sophistry pedantism and typical of those who do not respect the Constitution and who do not respect the rule of law in this country.”

On the suggestion that the present application was the result of cutting and pasting of the Eric Matinenga and Ors CCZ14/21 application, the applicants deny that the respective causes of action are similar, regard being had to the fact, that, in Eric Matinenga and Ors CCZ14/21, the application is based on the doctrine of basic structures, which is not the position in the present matter. They submit that conflating the two applications would have been undesirable.

The applicants state further, that, the Firinne Trust has the legal capacity to sue and be sued.

They aver however that even if it does not have such capacity, the first and third applicants, who are natural persons, are before the court.

They state that there is no point “raising an objection that does not advance any cause other than irritation.”

Brian Carston Brown avers, that, the Deed of Trust of the second applicant authorises the Trust to bring and defend proceedings. He does not, however, attach a copy of the Trust Deed.

The applicants further stress, that, no material amendments can be passed at the Committee Stage of Parliament and neither can amendments which would not have been subjected to a process of participatory democracy in terms of section 328 of the Constitution.

They argue that if this were to be allowed, it would mean the Executive would ambush the public by introducing major material and far-reaching amendments on an unsuspecting public.

In their heads of argument, the applicants submit that both Parliament and the President failed to fulfil their constitutional obligations in respect of the passage of the Constitution Amendment Act, and, more specifically, in enacting “ungazetted and unconsulted amendments.”

In summary, they submit that it is unconstitutional for Parliament to pass amendments that are not expressed in the terms originally gazetted in terms of section 328(3) of the Constitution, that have not been gazetted for ninety (90) days as required by section 328(3) and that have not been subjected to a process of public inquiry as mandated by section 328(4) of the Constitution.

They further submit that the Executive must justify its actions and show that it correctly fulfilled its constitutional obligations.

The applicants further argue that the Executive cannot, through the back door, allow such extensive amendments without them having been gazetted and debated.

They further submit, that, in interpreting section 328 of the Constitution, this court should not rely on the literal meaning of the words used but must read all the provisions of the Constitution holistically and in a generous and purposive manner.

If that approach is adopted, the conclusion would be reached that it was wrong and unconstitutional to introduce extensive amendments not previously gazetted or subjected to public scrutiny at the Committee Stage of Parliament.

They argue, that, nowhere in the Fifth Schedule to the Constitution is there provision for amendments to be made at the Committee Stage as stated in the Standing Orders. The procedure for amendments at the Committee Stage applies to normal Bills but not Constitutional Bills.

Section 328(4) of the Constitution implicitly excludes amendments that have neither been gazetted nor scrutinised by the public as there can never be amendments in respect of which members of the public are not invited to express their views on the proposed Bill.

On the remedy, the applicants submit that this is not a proper case for the court to employ a blue pencil test and excise the impugned provisions from the Constitution Amendment Act No.2. Instead, the Court should set aside the Act in its entirety.

At the hearing of the matter before this court, counsel for the applicants abandoned the preliminary point previously taken, that the Attorney-General cannot properly swear to an affidavit on behalf of the President.

Having abandoned that preliminary point, he nevertheless suggested that the judgment of this court should, obiter, express its views on the propriety of the Attorney General representing the President.

He further submitted, that, in the event that this court agrees with the applicants and holds that the amendment was unconstitutional, such decision should not have retrospective effect.

It was also his further submission, that, the Standing Orders of Parliament must be consistent with the Constitution which provides that all existing laws must be read in conformity with the Constitution.

Asked during the hearing in what way the President failed to fulfil his constitutional obligations, he told the court that the President has the obligation to scrutinise all Bills before assenting to them.

In heads of argument filed on its behalf, Parliament took two preliminary points:

(i) The first was that the application ought to fail, the applicants having purported to approach this court in terms of section 16(2)(d) of the Constitution.

(ii) The second was that there has been a fatal non-joinder of both the Attorney-General and the Minister of Justice, Legal and Parliamentary Affairs, who is the Minister assigned the administration of the Act and who has a direct and substantial interest in the matter.

On the merits, Parliament has submitted as follows:

It followed the required procedure in amending the Constitution. The Bill was gazetted before it was tabled in Parliament. The requisite ninety days period of notice of the precise terms of the Bill was given.

Section 117(2) of the Constitution confers on Parliament the legislative authority to amend the Constitution in accordance with section 328. Subsection (2) of section 328 provides that an Act of Parliament that amends the Constitution must do so in express terms.

The interpretation placed on section 328 of the Constitution, by the applicants, cannot be correct.

The section requires the Speaker to give notice in the Gazette of the precise terms of the Bill before presenting it in Parliament. In other words, the terms in the Gazette, from the time of gazetting and presentation in Parliament, cannot be changed. Thereafter, Parliament must invite members of the public to express their views on the Bill. Such invitation must be done before the Bill is presented in the house, and, once it is presented, it cannot be re-gazetted or referred back to the public.

The Bill must also be passed, at its last reading, by an affirmative vote of at least two-thirds of the membership of each house.

It was Parliament's further submission, that, regard being had to section 131(4) and the Fifth Schedule of the Constitution, it has the power to amend a Bill that has been transmitted to either house of Parliament.

Paragraph 5(3) of the Fifth Schedule, in particular, provides that a Bill, which, having been transmitted to a house of Parliament, is passed by that house with amendments must be returned to the originating house with the amendments duly certified by the Clerk of Parliament and the house to which it is returned may reject, agree to or amend any of those amendments.

Subparagraph (3) also provides that where a Bill is returned to the originating house with amendments, and such amendments are rejected, or amended by the originating house, the other house may, by resolution, withdraw the amendments or agree to it being amended.

Bearing in mind the definition of “amend” in section 332 of the Constitution, it is clear that during debate, the houses may amend, vary, alter, modify, add to, delete or adapt the gazetted Bill.

It was Parliament's contention that the Constitution does not provide for any amendments effected to a gazetted Constitutional Bill to be re-gazetted or subjected to further public meetings and consultations. Had the intention been that the gazetted Bill should not be passed with amendments or that such amendments be further published and subjected to public scrutiny, then, Parliament would have said so.

Parliament further re-states, that, there would be little purpose in having debate in Parliament, from the first to the third reading, if Parliament were not to be allowed to make amendments where it deems fit.

In oral submissions, counsel for Parliament abandoned the preliminary point that the application was invalid, having been filed in terms of a non-existent section 16(2)(d) of the Constitution.

He, however, persisted with the preliminary point taken on the fatal non-joinder of the Minister of Justice, Legal and Parliamentary Affairs and the Attorney-General.

Counsel for Parliament made the following further submissions:

The Constitution provides, in paragraph 12 of Part 4 of the Sixth Schedule, that the Standing Orders that were in force before the effective date continue in force until replaced or amended in terms of the Constitution.

Therefore, it is not permissible for the applicants to challenge conduct that is allowed by a law without challenging the law that allows it.

The Standing Orders provide for amendments at the Committee Stage. Therefore, it is impermissible to impugn a process which is part and parcel of the Constitution.

He further submitted, that, the Speaker, being the presiding officer of the activities of Parliament, can quite properly attest to an opposing affidavit on behalf of Parliament.

He also argued, that, the constitutional obligation on Parliament is to solicit the views of the public in public meetings and to give the public ninety (90) days notice of the precise terms of the Bill.

That requirement was complied with in this case.

The argument whether an amendment is major or material does not arise from any of the provisions of the Constitution. Whether an amendment is major cannot be determined by this court and would require the court to delve into the actual processes of Parliament in order to make such a determination.

The argument by the applicants that a Constitutional Bill cannot be amended, as happened in this case, fails to appreciate that members of Parliament are the representatives of the masses. They make the final decisions on what to bring up during debate.

He further submitted, that, they have no legal obligation to take up the views expressed by the public during public meetings and in written submissions.

It was quite proper for proposals to be made during the debate in plenary and for amendments to be made to the Bill consequent thereto. Section 328 of the Constitution does not state what Parliament must do with the views expressed by the public. The process was intended to inform members of Parliament of the views expressed by members of the public they represent in Parliament.

In heads of argument filed on his behalf, the President has submitted that section 328(3) of the Constitution does not impose any obligations on him as the President of Zimbabwe. It merely imposes obligations on the Speaker of Parliament to publish, on ninety days notice in the Gazette, the precise terms of a Constitutional Bill to be submitted to Parliament.

The Speaker's omission, if any, cannot be subjected to the jurisdiction of this court under section 167(2)(d) of the Constitution. Subsection (4) imposes an obligation on Parliament to invite members of the public to express their views in public meetings and through written submissions.

The President has also raised two preliminary points:

(i) First, that in purporting to approach this court under section 16(2)(d) of the Constitution, which section bears no relationship to the relief sought, the application is invalid and must be dismissed on that basis alone.

(ii) Secondly, that the relief sought in the application in Eric Matinenga and Ors CCZ14/21 is identical to that sought in this matter. The matter is accordingly lis pendens.

On the merits he has submitted as follows:

Section 328(3) of the Constitution imposes a disability as opposed to an obligation in that it limits the right of Parliament to receive a Constitutional Bill to only those bills that would have been published by the Speaker in the manner set out in that provision.

Therefore, a breach of section 328(3) of the Constitution does not constitute a failure to fulfil a constitutional obligation as such an obligation must be a positive duty imposed by that section.

He has further submitted, that, the public functionary upon whom the Constitution imposes a positive obligation is the Speaker of Parliament who must give at least ninety days notice in the Gazette of the precise terms of the Bill.

Neither Parliament nor the President had an obligation to gazette the Bill in terms of section 328(3) of the Constitution.

The Speaker, in compliance with section 328(3) of the Constitution, published the terms of the Bill in the Gazette and the Bill was presented to Parliament more than ninety days after such gazetting. The Bill that was presented to Parliament was the same Bill that had been published in the Gazette by the Speaker.

He submitted, that, whilst section 328(4) of the Constitution imposes an obligation on Parliament to ensure public participation, it imposes no obligation on him as President. For that reason, if the Court finds that Parliament breached that provision, such breach cannot be imputed to him as President.

He further submitted, that, immediately after gazetting the precise terms of the Bill, as was done in this matter, Parliament was required to do three things:

(i) Firstly, it was supposed to invite members of the public to express their views on the Bill.

(ii) Secondly, it was required to convene meetings and provide facilities to enable the public to air their views.

(iii) Thirdly, it was required to hold public hearings and receive written submissions.

He submitted, that, in respect of all three requirements, there was compliance by Parliament. The Bill was gazetted on 17 January 2020; the first invitation for the public to air its views was made on 22 January 2020, five days after the gazetting. Such invitation was therefore immediate; Parliament further convened public meetings during which members of the public aired their views on the Bill. There were also radio programmes and zoom meetings.

In oral submissions, counsel for the President abandoned two preliminary points previously raised. These are:

(i) Whether the application is invalid for citing section 16(2)(d) of the Constitution; and

(ii) Whether there is a pending matter involving the same parties and in which the same relief is sought.

He however submitted, that, the applicants have employed insulting and abusive language in their answering affidavit, and, for that reason, should bear the costs of the application.

On the competence of the Attorney General to represent the President, he submitted, that, since the applicants had abandoned this point, the court should not determine the matter as urged by the applicants as there is a lot of material that is not before the court; in particular, details on the sui generis position of the Attorney-General.

On the substance, he submitted that section 328 of the Constitution does not impose any obligation on the President, and, further, that there is no obligation on the President to supervise proceedings in Parliament.

In terms of section 131 of the Constitution, the President is required to assent to Bills or refuse to do so. In the context of this matter, that is his only obligation. He cannot be accused of breaching the Constitution where Parliament has committed a breach of its Rules.

Ms Sanhanga, as amicus curiae, submitted that it was common cause that the original Bill was duly gazetted for the minimum period of ninety days and that the public had an opportunity to comment on it before it was debated in Parliament. It was also common cause that the Bill which was originally gazetted was the same Bill which was presented to the National Assembly. It was also common cause that the Bill was amended at the Committee Stage by the National Assembly and that the Bill, as amended, was not again gazetted after the amendments and that no further consultation of members of the public took place. The Bill was then passed in both houses with the requisite two-thirds majority and was assented to by the President and gazetted on 7 May 2021.

Section 328(2) of the Constitution provides that an Act of Parliament that amends the Constitution must do so in express terms. The section refers to an Act and not a Bill. The amendments made by the Act are in express terms.

Therefore, section 328(2) of the Constitution was complied with.

She further submitted, that, whilst Parliament has the general power to amend the Constitution, pursuant to section 117(2)(a) as read with section 328 of the Constitution, there is no express provision in the Constitution for the amendment of Bills.

However, paragraph 5 of the Fifth Schedule to the Constitution provides for the amendment of Bills in general, which would also include a Constitutional Bill.

It was also her submission, that, contrary to the assertions made by the respondents, section 5 of the Fifth Schedule provides for amendments to be made to Bills in the house of Parliament to which the Bill has been transmitted and not the originating house. In other words, the section does not provide for amendments to be made by the originating house, unlike in this case where the amendments were made in the National Assembly.

Section 139 provides for Standing Orders which govern the passing of Bills, and, in section 154 of the Standing Orders, provision is made for the amendment of Bills in the National Assembly as the originating house. Based on those provisions, the originating house of Parliament is therefore entitled to amend Bills, including Constitutional Bills.

It was her further submission, that, section 328(4) of the Constitution merely provides for consultation through public meetings and written submissions. In other words, the public simply gives its opinion on the proposed amendment, and, although the legislative authorities are expected to listen to those views, they are not obliged to act on them.

It is Parliament, through the two houses, which would then take into account those views and craft a Bill which accords with the views of the public and constituencies as represented by each member of Parliament.

In her view, in such a situation, there is no requirement for gazetting the amendments as the stage for consultation would have been passed.

In any event, the applicants have not stated what the views of the public were.

Accordingly, there has been no violation of section 328(3)(4) of the Constitution and the suggestion that this court should infer requirements which are not expressly stated as being mandatory would impermissibly undermine the legislature which is itself a representative of the people.

This, she further submitted, would not only result in arbitrariness in the law but would have, as a consequence, the judiciary amending the Constitution.

From the foregoing, it is apparent that a number of preliminary issues arise and that they require to be determined in limine.

In the event that the preliminary issues are not dispositive of the dispute between the parties, the sole issue that would arise for determination is whether the amendments effected to the Bill should have followed the procedure provided in sub-sections (3) and (4) of section 328 of the Constitution....,.

The only issue that remains for determination is whether there was compliance, on the part of Parliament and the Speaker, with the provisions of section 328(2), (3) and (4) of the Constitution....,.

This is the nub of the dispute between parties. The facts giving rise to the proceedings, which are largely common cause, are worth regurgitating:

On 31 December 2019, the Speaker of Parliament gazetted the Constitutional Amendment Bill HB23/19. It consisted of twenty seven clauses that dealt with an extensive list of constitutional issues. These dealt with various issues, chief among which were the removal of the running mate clause for Vice-Presidents; increasing the number of non-constituency Ministers who could be appointed; increasing the tenure of office of female proportional representative members of Parliament; the appointment of Judges as well as their tenure; the appointment of the Prosecutor-General; and the removal of Members of Parliament from the membership of Provincial Councils.

In accordance with subsection (4) of section 328 of the Constitution, Parliament duly invited members of the public to express their views on the Bill in public meetings and through written submissions.

In accordance with its processes, Parliament proceeded with the first and second reading of the Bill.

In concluding and winding up debate on the Bill, the Minister of Justice, Legal and Parliamentary Affairs responded to points made during the debate and gave notice that he would be moving amendments during the Committee Stage that was scheduled for the following day.

The amendments were duly published in the order paper for the following day, that is, 15 April 2021.

On 15 April 2021, the Minister proposed a number of amendments whilst others were proposed from the floor by the Minister himself and Priscilla Mushonga, a Member of Parliament.

It is these amendments, which were then accepted and adopted during the Committee Stage, that the applicants seek to impugn.

The process leading up to the debate in Parliament is not impugned and no issues arise before this court in that regard.

It is the applicants contention that Parliament cannot make 'major' or 'material' amendments to a Constitutional Bill, and that, if such amendments are made, the amendments would constitute a new Constitutional Bill and the processes provided in sub-sections (3) and (4) of section 328 of the Constitution must again be complied with.

Counsel for the applicants submitted, that, there is no stage known in our Constitution as the Committee Stage in Parliament and that the Standing Orders that allow amendments at the Committee Stage are not consistent with section 328 of the Constitution as there cannot be a procedure for a Committee Stage in respect of a Constitutional Bill.

In light of this submission, there is need, therefore, to take a closer look at the provision in question in order to determine whether, on a holistic, contextual, and purposive interpretation of section 328 of the Constitution, which he urges this court to adopt, it means what the applicants contend it does, namely, that where there are major or material amendments effected to a Constitutional Bill, then, the process provided for in subsections (3) and (4) of section 328 of the Constitution must once again be resorted to.

In short, should section 328 of the Constitution be interpreted to include such an obligation?

In urging this court to adopt a holistic, contextual, and purposive approach to the interpretation of section 328 of the Constitution, the applicants say nothing about the ordinary meaning of the words used in the section.

The position is now firmly established, that, a Constitution is not simply a statute which mechanically defines the structures of Government and the relations between the Government and its citizens.

Expressed differently, a Constitution is not an ordinary legal document, and, in interpreting it in any given case, it behoves a court to go beyond the literal meaning of the words used and to adopt a contextual, holistic, and purposive approach in order to give full effect to the provisions of the Constitution.

The interpretation accorded must be a generous rather than a legalistic one, aimed at securing the full benefit of the Constitution.

However, one must pay due regard to the language which has been used and to the traditions and usages which have given meaning to that language.

Where the words employed in the Constitution are clear and unambiguous, and allow of no absurdity or repugnance with the rest of the provisions in the Constitution, or with the context, then, such a literal interpretation should be adopted: see Stanley Nhari v Robert Gabriel Mugabe and Ors SC161-20.

As a general rule, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of other statutes. One must look to the words actually used and deduce what they mean within the context in which they appear. If the words used are precise and un-ambiguous and accord with the context, then, no more is necessary than to expound them in their natural and ordinary sense.

One does not depart from the literal and grammatical meaning unless this leads to such an absurdity that could not have been contemplated by the legislature: see Stanley Nhari v Robert Gabriel Mugabe and Ors SC161-20.

Put another way, the provisions of the Constitution ought to be given their ordinary grammatical meaning if such meaning is compatible with their complete context: see Anna Colleta Chihava (2) Boas Mapuya (3) Zishe Chizani v The Provincial Magistrate, Francis Mapfumo N.O. (2) The Prosecutor General 2015 (2) ZLR 31 (S)…,.; Mupungu v Minister of Justice, Legal and Parliamentary Affairs and Others CC07-21…,.

The applicants appear to accept that Parliament does have the power to amend a Constitutional Bill, but, state that such an amendment should not be 'major' or 'material'.

A consideration of the Constitution shows, that, in terms of section 117 of the Constitution, Parliament does have the power to make law and to amend the Constitution in accordance with section 328 of the Constitution.

Section 131(4) of the Constitution, in turn, provides that the procedure to be followed by the National Assembly and the Senate with regards to Bills is as set out in the Fifth Schedule of the Constitution. The Fifth Schedule, in Part 2, provides for the amendment of Bills by a house to which a Bill has been transmitted by the other House.

It is apparent from the foregoing, that, there is no specific power given to Parliament to amend a Bill in terms of the Constitution.

Section 139 of the Constitution, however, provides for rules known as Standing Orders made by either House, individually or jointly, on the recommendation of the Committee on Standing Rules and Orders.

Paragraph 12 of Part 4 of the Sixth Schedule provides that the Standing Orders that were in force immediately before the effective date continue in force as Standing Orders of the Senate and National Assembly until they are replaced or amended in accordance with the Constitution.

That provision is very clear, that, any Standing Orders in force before the effective date continue to have effect until replaced or amended.

It was counsel for the applicants argument, that, the Standing Orders are now inconsistent with the Constitution.

He argued further, that, as Standing Orders relate to ordinary Bills and not to Constitutional Bills, there is a lacuna in the law as there is no provision in the Constitution for an amendment during the Committee Stage.

I am unable to agree with counsel for the applicants contention in this regard.

The Constitution states, in no uncertain terms, that, the procedure for “Bills” is as set out in the Fifth Schedule.

The Fifth Schedule does not distinguish the procedure to be followed by Parliament with regards to ordinary Bills, on the one hand, and Constitutional Bills, on the other.

What this means is that, for purposes of the Constitution, an ordinary Bill is as much a Bill as a Constitutional Bill.

It is also clear that Standing Orders 141 and 142 treat a Constitutional Bill as any other Bill, the only significant difference between the two being, that, in introducing a Constitutional Bill in Parliament, the procedure provided for in section 328 of the Constitution must be strictly and religiously followed.

As noted elsewhere in this judgment, the Constitution provides for the Standing Orders that were in force to remain effective notwithstanding the coming into effect of the 2013 Constitution.

The Constitution, therefore, deliberately avoided the possibility of a lacuna in the procedures of Parliament by providing, in un-ambiguous terms, that the Standing Orders that were in existence on the effective date would remain operative until they are replaced or amended.

Section 139(2) of the Constitution is pertinent - it states, that, Standing Orders may provide for the manner in which a Bill may be passed.

Standing Order 143 of the National Assembly Standing Orders (Public Business), (Ninth Edition, 2020) provides for referral of Bills to an appropriate Portfolio Committee. It further provides that the Committee shall have fourteen days, in the case of an ordinary Bill, and ninety days in the case of a Constitutional Bill for presentation of its report at the second reading stage.

The Portfolio Committee is then required to table its report containing its deliberations and recommendations on a Bill at the second reading stage. Once a Bill has been read a second time, it is then committed to the Committee of the Whole House, which, in terms of Standing Order 154, can make amendments to the Bill.

Standing Order 154 provides as follows:

“Amendments in Committee

154(1) The committee of the whole House, when considering a Bill, has the power to make any amendments to the Bill under consideration by amending a clause or inserting new clauses at the appropriate places in the Bill:
(2)…,. (not relevant).”

Standing Order 154 remains extant. By command of the Constitution itself, it remains effective.

It allows for the amendment of clauses in a Bill or the insertion of new clauses at appropriate places in a Bill. The only qualification in the Standing Order to such amendments or new clauses is that any amendments must be:

“(a) Relevant to the subject matter of the Bill; or
(b) Made pursuant to any instruction, and are otherwise in conformity with these Standing Orders.”

I am, therefore, unable to agree with counsel for the applicants, that, Standing Order 154 is no longer consistent with the current Constitution or that it is irrelevant in this case.

The Constitution itself says it remains effective until repealed or amended.

In any event, the position is settled in this jurisdiction, that, it is improper for the applicants to impugn, on a constitutional basis, things done in terms of the provisions of the Standing Orders without simultaneously impugning the validity of the Standing Orders themselves.

In this regard, attention may be drawn to the remarks of this court in Berry (Nee Ncube) and Anor v Chief Immigration Officer and Anor 2016 (1) ZLR 38 (CC)…, in which it was emphasised that:

“…, one cannot impugn, on a constitutional basis, conduct that constitutes a proper, lawful application of the law, without challenging the constitutional validity of the same law, or actions premised on a misinterpretation of it.”...,.

Section 328 of the Constitution makes provision for the procedures to be followed in the amendment of the Constitution.

Whilst the applicants seem to accept that amendments can be affected to a Constitutional Bill, they argue that once the amendments reach the threshold of being 'major' or 'material' then the amendments must be re-gazetted and subjected to further public consultation.

It is not in dispute that section 328 of the Constitution makes no provision for “major” amendments made to a Constitutional Bill to be subjected to the processes provided for in subsections (3) and (4) of section 328 of the Constitution.

The applicants urge this court to interpret that section to mean that such a requirement is implied.

A holistic, generous, purposive and contextual interpretation of the Constitution is what the applicants urge this court to adopt in order to come to the conclusion that the processes in sub-sections (3) and (4) of section 328 of the Constitution must be repeated whenever there are major amendments to a Constitutional Bill.

Although the terms holistic, generous, purposive, and contextual might appear, at first sight, to be very strange and frightening, they are not so alarming as they appear.

In a purposive approach, a court endeavours to ascertain the design or purpose behind the constitutional provision. The purpose of a statute plays an important role in establishing a context that clarifies the scope and intended effect of a law.

A holistic interpretation, on the other hand, takes into account all relevant provisions that have a bearing on the constitutional text.

A contextual approach takes into account the historical and political setting of the Constitution as well as the textual setting of the provisions in the Constitution.

A generous interpretation is one that is in favour of rights and against their restriction.

See The Bill of Rights Handbook by IAN CURRIE and JOHAN De WAAL, Sixth Edition…,.

A requirement that Parliament should repeat the process delineated in section 328(3) and (4) of the Constitution would be a very deliberate and significant one; one that Parliament would not consign to conjecture or inference.

Had Parliament intended to create an obligation on the part of Parliament, or the Speaker, to repeat the process in sub-sections (3) and (4) following amendments to a Constitutional Bill, it no doubt would have said so.

But, it did not.

Moreover, there is nothing either in the context of the Constitution, as a whole, that suggests that such a requirement was in the contemplation of the Legislature when section 328 of the Constitution was drafted, or that, without reading in such a requirement, the section would be rendered nugatory or that some absurdity would eventuate.

This court cannot read in such a requirement, as such an interpretation would not be consistent with the ordinary grammatical meaning of section 328 of the Constitution. Nor can this court find that such a requirement is implied as it is patently inconsistent with the words expressly used in the provision.

As MAXWELL, Interpretation of Statutes, 12th ed, states…,:

“If there is one rule of construction for statutes and other documents, it is that you must not imply anything in them which is inconsistent with the words expressly used…,. If the language is clear and explicit…, the court must give effect to it, for, in that case, the words of the statute speak the intention of the legislature.”

Moreover, what constitutes a 'major' or 'material' amendment is neither provided for nor defined in section 328 of the Constitution.

Bearing in mind that the Standing Orders permit Parliament to amend a Bill, including a Constitutional Bill, any attempt by this court to determine what is a 'major' or 'minor' amendment would indubitably require this court to unjustifiably delve into the very core of the processes of Parliament.

This court has no mandate to do so, bearing in mind that Parliament, as one of three organs of the State, has specific jurisdiction over its own processes. As a court, we should always pay attention to the vital limits of our judicial authority and the deliberate design to leave other matters to other branches of the State.

As pertinently stated by the Constitutional Court of South Africa in Economic Freedom Fighters v Speaker of the National Assembly and Ors CCT 143/15 and CCT 171/15:

“Courts should not interfere in the processes of other branches of government unless otherwise authorised by the Constitution. It is therefore not for the court to prescribe to Parliament what structures or measures to establish or employ respectively in order to fulfil responsibilities primarily entrusted to it. Courts ought not to blink at the thought of asserting their authority, whenever it is constitutionally permissible to do so, irrespective of the issues or who is involved. At the same time, and mindful of the vital strictures of their powers, they must be on high alert against impermissible encroachment on the powers of the other arms of government.”…,.

Earlier, in the case of Doctors For Life International v The Speaker of the National Assembly & Ors CCT 12/05, urging some caution, the Court remarked:

“The constitutional principle of separation of powers requires that other branches of government refrain from interfering in parliamentary proceedings…,. Courts must be conscious of the vital limits on judicial authority and the Constitution's design to leave certain matters to other branches of government. They too must observe the constitutional limits of their authority. This means that the judiciary should not interfere in the processes of other branches of government unless to do so is mandated by the Constitution.”…,.

In all the circumstances, therefore, I am not persuaded that there is any basis for finding that section 328 of the Constitution imposes an obligation on the Speaker and Parliament to re-open the processes provided for in subsection (3) and (4) once amendments are effected to a Constitutional Bill.

Nor is there any basis for the suggestion that the amendments that are proposed following debate in Parliament must themselves constitute a separate Constitutional Bill.

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.

This is an application that is headed “Chamber Application for Condonation of Late Filing of Application for Leave to Appeal in terms of Rule 61 of the Supreme Court of Zimbabwe Rules 2018.”

The respondents were employed by the applicant. On 14 June 2016 they were brought before a disciplinary committee on allegations of misconduct. They were found guilty. This culminated in their discharge from employment on 14 July 2016.

Aggrieved by the decision, the respondents filed with the Labour Court (the court a quo) an application for review of the proceedings.

The court a quo set aside the dismissal of the respondents. It remitted the matter for a re-hearing before “a properly constituted disciplinary committee.” It also ordered that the respondents “revert to the status quo ante which was suspension pending the disciplinary hearing.”

Aggrieved by the decision of the court a quo, the applicant sought the court a quo's leave to appeal against its decision to this Court.

On 17 August 2018, the court a quo dismissed the application for leave to appeal.

On 28 August 2018, the applicant filed with the Supreme Court a chamber application for leave to appeal, its right to do so deriving from section 92F(3) of the Labour Act [Chapter 28:01]. The application was set down for hearing on 19 October 2018, but was, on that date, struck off the roll.

On 5 April 2019 this application was filed.

The respondents opposed it.

The matter was set down for hearing on 26 July 2019, but was only eventually heard on 20 August 2019.

At the onset of proceedings, counsel for the respondents raised what he termed a composite preliminary point, to the effect that the matter was not properly before the court and must be struck off the roll with costs.

Counsel for the respondents submitted, that, Rule 61 of the Rules of this Court, in terms of which the applicant has purported to bring this application, is inapplicable in this matter as the Rule only relates to applications for condonation of failure to note an appeal timeously and extension of time for instituting the appeal.

He submitted that Rule 61 of the Supreme Court Rules relates to situations where leave to appeal (where necessary) would have been granted in terms of Rule 60 and a party fails to file its notice of appeal within the time frame stipulated in Rule 60(2) of the Supreme Court Rules. Such a party would then have recourse to Rule 61 and make an application in which it shows special circumstances why its failure should be condoned and extension of time granted.

Counsel for the respondents further submitted, that, the applicant ought to have proceeded in terms of the relevant provisions in Part VI of the Rules. He also made reference to Part VII headed “Miscellaneous Appeals and References” with particular emphasis on Rule 64 of the Supreme Court Rules which provides, that, in the case of a lacuna, the provisions of Part VI shall apply.

The second aspect of the preliminary point was that the applicant's founding papers do not set out factual averments for motivation of extension of time, thereby compounding the impropriety of the application.

Counsel for the applicant, on the other hand, submitted that the application is properly made in terms of Rule 61 of the Supreme Court Rules and is properly before the court.

He submitted, that, Rule 61 of the Supreme Court Rules provides for a “composite or in-series” application and is not only meant for situations where leave to appeal has been granted. He further submitted, that, what the applicant seeks from this Court in this application is “condonation and extension of time to seek leave to appeal.”

If Rule 61 of the Supreme Court Rules is inapplicable, as contended on behalf of the respondents, then, this application ought to be struck off the roll as the court would have no jurisdictional basis on which to relate to it on the merits.

Rule 61 of the Supreme Court Rules provides:

“Applications for extension of time to appeal

Save where it is expressly or by necessary implication prohibited by the enactment concerned, a judge may, if special circumstances are shown by way of an application in writing, condone the late noting of the appeal and extend the time laid down, whether by Rule 60 or by the enactment concerned, for instituting an appeal.”

The context of Rule 61 is as a sequel to Rule 60 of the Supreme Court Rules which reads:

“Time within which notice to be given

60(1) Subject to the provisions of Rule 61 and the enactment under which the appeal is lodged, a notice of appeal shall be delivered and filed in accordance with the provisions of Rule 59 within 15 days of the date of the decision appealed against.

(2) An appeal from a decision of the Labour Court in terms of section 92F of the Labour Act [Chapter 28:01] shall be delivered and filed with a registrar within 15 days from the grant of leave to appeal by the Labour Court, or, where such leave is refused, within 15 days from the grant of leave by a judge:

Provided that where leave to appeal is refused by the Labour Court, the applicant shall apply for leave to appeal to a judge within ten days of the refusal to grant leave.”

The right to make an application pursuant to the above quoted proviso to Rule 60(2) of the Supreme Court Rules derives or emanates from section 92F(3) of the Labour Act which provides:

“(1) An appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court.

(2) Any party wishing to appeal from any decision of the Labour Court, on a question of law, in terms of subsection (1), shall seek from the President who made the decision leave to appeal that decision.

(3) If the President refuses leave to appeal in terms of subsection (2), the party may seek leave from the judge of the Supreme Court to appeal.”

According to the applicant's founding affidavit, the striking off by this court on 19 October 2018 of the application that had been timeously filed on 28 August 2018 was by consent of the parties, and, it was for the reason that “the appeal record…, was not attached to the application.”

That application having been struck off the roll, the applicant was well within its rights to approach this Court, again, as it has done, by way of the instant application.

Unfortunately, however, the applicant has approached this court in terms of Rule 61 of the Supreme Court Rules as already indicated above.

Rule 61 of the Supreme Court Rules provides for an application to be made for the court to “condone late noting of the appeal and extend the time laid down.”

There is no reference to condonation of failure to apply for leave to appeal timeously. Neither is there any provision in Part VII under which Rule 61 of the Supreme Court Rules falls, that provides for such.

However, Rule 64 of the Supreme Court Rules (in Part VII) provides:

“In the event of any casus omissus in this Part, the provisions of Part VI shall apply, mutatis mutandis.”

In Part VI which is headed “Applications for leave to appeal or extension of time to appeal” Rule 43(3) of the Supreme Court Rules provides as follows:

“An application for condonation of non-compliance with the rules and for extension of time in which to appeal shall have attached to it a notice of appeal containing the matters required in terms of subrule (1) of Rule 37 and an affidavit setting out the reasons why the appeal was not entered in time or leave to appeal was not applied for in time. Counsel may set out any relevant facts in a statement. Where such application is in relation to a matter in which leave to appeal is necessary the application shall, in addition, comply with the requirements of subrule (2).”

Subrule (2) reads:

“An application for leave to appeal shall set out the date on which the High Court refused leave to appeal and shall have attached to it –

(a)…,.

(b)…,.

(c)…,.”

Rule 43(3) of Part VI, applying herein mutatis mutandis, would provide for the making of an application for condonation of non-compliance with the proviso to Rule 60(2) of the Supreme Court Rules, viz, the failure to apply for leave to a judge of this Court within ten days of the refusal to grant leave by a judge of the court a quo.

Subrule (8) of Rule 43 of the Supreme Court Rules is also pertinent in its provision, that:

“If leave to appeal or condonation and extension of time to appeal is granted, the appeal shall be deemed to have been instituted in accordance with the notice of appeal filed in the application on the date on which leave is granted, unless the judge otherwise orders.”

I might comment, in passing, on the draft Notice of Appeal filed together with the application.

It seeks to appeal against the judgment of the court a quo dismissing the applicant's application for “upliftment of bar and condonation of late filing of an application for leave to appeal to the Supreme Court” (sic). The ultimate relief sought, besides being improperly drafted, is for the setting aside of the order refusing leave to appeal and purportedly the substitution thereof with an order that reads:

“The application for upliftment of bar and condonation of filing of application for leave to appeal to the Supreme Court be and is hereby granted.” (sic)

The notice of appeal is therefore not meant to institute an appeal against the decision of the court a quo in the main matter for which leave to appeal was originally sought before the court a quo. The applicant seems to labour under a misconception or probably confusion as to the course it ought to follow.

In essence, the applicant seeks before a judge of this Court condonation for its non-compliance with Rule 60 of the Supreme Court Rules upon which a judge of this Court will then allow it to file its application for leave to appeal within five days of this court's order.

This accords not only with counsel for the applicant's submission cited earlier but with the terms of the draft order that it prays for in this application which reads as follows:

“IT IS ORDERED THAT:

1. The non-compliance with Rule 60 of the Supreme Court Rules be and is hereby condoned.

2. Application for condonation of late filing of application for leave to appeal in terms of Rule 61 of the Supreme Court Rules be and is hereby granted.

3. The applicant is to file its application for leave to appeal within 5 days of this order.

4. That there be no order as to costs.”

The applicant seems unclear as to the correct procedure to be followed.

Its application for leave to appeal having been dismissed by the court a quo, it then applied to this Court for the leave that it supposedly craved. Its first application to this Court was allegedly timeously made, but, unfortunately, for the applicant it was struck off the roll.

It then filed this application.

The “disconnect” now appears from the relief sought herein. The applicant now seeks to go back to the court a quo to seek the very leave that section 92F(3) of the Labour Act and the proviso to Rule 60(2) of the Supreme Court Rules require that it seeks from this Court.

In University of Zimbabwe v Jirira & Another SC12-18 BHUNU JA aptly stated:

“In terms of section 92F(3) of the Labour Act [Chapter 38:01], where a judge of the Labour Court refuses to grant leave to appeal, the applicant may seek leave from a judge of this Court. When a judge of the Supreme Court sits in chambers to decide the application for leave to appeal, he does not treat the application as an appeal against the refusal to grant leave by the court a quo. He simply decides the matter on the merits as if it was fresh application before him/her.”

On a view of the applicable law, as provided in section 92F of the Labour Act as well as Rule 60(2) of the Supreme Court Rules, it is clear that when a party seeks before a judge of this Court leave to appeal, such leave is for the purpose of appealing against the decision in the main matter and not against the refusal to grant leave.

This court cannot possibly be asked to grant leave to the applicant for the applicant to go back to the court a quo for the purposes of seeking leave to appeal as that would be an absurd outcome....,.

This is an appeal against a decision of the Administrative Court of Zimbabwe handed down on 8 March 2019 upholding two consolidated appeals by the first to the fourth respondents (The Cosmo Trust, Babra Vitoria, Margaret Soper and Linda Bromley) challenging the issuance of an environmental impact assessment certificate by the sixth respondent (Environmental Management Agency) and a development permit issued consequent thereto by the City of Harare.

The City of Harare, the fifth respondent herein, has also filed a cross-appeal against the same judgment of the Administrative Court.

The gravamen of the grievance before the court a quo was that the issuance of the environmental impact assessment certificate and development permit violated various procedural requisites as well as Environmental Law.

After due consideration of all the papers filed of record, and submissions made by counsel on behalf of the parties, I am not persuaded that, save for the decision of the court a quo to relate to the merits of the dispute inter se, the court a quo was wrong in upholding the appeal.

In the circumstances, subject to that rider, both appeals stand to be dismissed with costs.

The first appellant, Sharadkumar Patel, is a director of Meadows (Pvt) Ltd, a company incorporated in accordance with the laws of this country.

It was to him that the development permit for the Meadows of Monavale was granted.

The company, Meadows (Pvt) Ltd, owns a piece of property called The Meadows of Monavale Extension of Mabelreign. It was in respect of that piece of land that the development permit was granted by the City of Harare.

The first respondent, The Cosmo Trust, is a duly registered trust whose powers and objectives include the protection of the environment and natural resources of Monavale in the general interest of its residents.

The second to the fourth respondents occupy separate pieces of land along Fennela Drive that are contiguous to the Meadows of Monavale.

The fifth respondent, the City of Harare, is a local authority which issued the development permit for the construction of residential units on the Meadows of Monavale.

The sixth respondent, the Environmental Management Agency, is a statutory body established in terms of the Environmental Management Act [Chapter 20:27].

The seventh respondent is the Minister of Environment, Tourism and Hospitality Industry (“the Minister”), under whose aegis the sixth respondent falls.

It was also the Minister who dismissed the first to the fourth respondents appeal against the issuance of an environmental impact assessment certificate issued by the sixth respondent, which decision is partly the subject of the present appeal.

The piece of land that lies at the centre of the dispute between the parties, namely, the Meadows of Monavale Extension of Mabelreign, was transferred into the second appellant's name (Meadows (Pvt) Ltd) in June 1987.

It is 16,2885 hectares in extent and borders Fennella Drive and Monavale Road in Monavale.

The property has remained largely undeveloped over the years, although the record shows that the first appellant has a residence on a portion of that property. It is part of a much bigger piece of land known as the Meadows of Monavale which is five hundred and seven (507) hectares in extent and is a wetland known as the Monavale Wetland.

That wetland forms the headwaters of the Marimba River and its tributary, the Avondale stream, and is part of a network of wetlands within the City of Harare, providing a wide diversity of beneficial ecosystems to the city. It is an important component of Harare's water system, through water accumulation from direct rainfall, runoff and groundwater influx; flood flow attenuation, and slow release of water to base flow in streams; groundwater recharge; protection against flooding and the impact of storms; trapping excess sediment from runoff, reducing siltation of dams; and improvement of water quality for household supply through filtration.

Following a proposal by the first respondent and an organisation called Birdlife Zimbabwe, surveys were carried out resulting in the appellants obtaining authority, from the Surveyor-General, for the Meadows of Monavale Extension of Mabelreign to be subdivided into two plots; the first being a 9,35 hectare plot on the northern side of the property which was to be known as Stand 201 and which was to be sold to Birdlife Zimbabwe and the remainder, a six hectare plot, to be retained by the appellants. The subdivision permit subsequently lapsed and the sub-division was never effectuated.

Zimbabwe acceded to the Convention on Wetlands of International Importance Especially as Waterfowl Habitat known as the Ramsar Convention on 3 January 2013.

Upon accession, the country nominated seven sites, including Monavale Wetland, to be included in country's Ramsar list of Wetlands of International Importance. The other sites were Cleveland Dam, Chinhoyi Caves, Driefontein Grasslands, Victoria Falls National Park, Mana Pools and Lake Chivero.

In 2014, the appellants submitted an application for an environmental impact assessment certificate for a housing development on the land.

On 9 July 2014, the Director-General of the Environmental Management Agency dismissed the application on the basis that the land was not suitable for such a development as it was situated in an ecologically sensitive area and ecosystem in need of protection under the Ramsar Convention. The appellants were advised to adopt an alternative land use that would ensure that the area was maintained and protected.

That decision was not thereafter challenged.

In 2015, the appellants submitted an application for a development permit with the City of Harare (“The City Council”). Despite objections, a development permit was issued. The first respondent lodged an appeal against the development permit in the Administrative Court. The permit was set aside, in November 2016, on the basis that the appellants had not, before applying for the permit, secured an environmental impact assessment certificate.

That judgment remains extant although there was an attempt to appeal against it, which was abandoned.

Pursuant to the decision of the Administrative Court, the appellants submitted another application for an environmental impact assessment certificate to the Environmental Management Agency.

The application was made in respect of Stand 201, Monavale.

No stakeholder consultation was conducted with interested parties, notwithstanding the peremptory provisions of section 136 of the Environmental Management Act [Chapter 20:27] (“the EMA”).

An environmental impact assessment certificate was then issued by the agency on 10 November 2017.

The certificate stated, that, it had been granted in respect of a housing development on Stand 201 Monavale (6804), subject to eight conditions highlighted in an annexure to that certificate.

Armed with the environment impact assessment certificate, the appellants wrote to the City Council requesting the Council to re-issue the development permit previously granted in November 2015. The request was treated, by Council, as a new application for a development permit.

The first respondent then appealed to the Minister against the decision by the agency to issue the certificate.

In the appeal, the first respondent raised a number of complaints; that there was no Stand known as 201 Monavale and that interested persons had not been given the opportunity to make representations in the matter; that the developer had failed to carry out wide consultations with stakeholders before approaching the agency; that, notwithstanding its clear interest in the matter, it had not been notified of the issuance of the certificate; that the decision to grant the certificate violated its environmental rights and those of its members; and that the decision breached the country's international obligations under the Ramsar Convention. Further, that the certificate had not been issued by the agency's Director-General.

In a response penned by the Ministry's Permanent Secretary, the appeal was dismissed on various bases.

That, whilst the agency was not in a position to confirm whether or not Stand 201 existed, the Director General of the Environmental Management Agency could properly delegate the authority to issue the certificate to a junior; that, the documents submitted reflected that there had been public consultation on the part of the developer and that reservations had been taken into account.

Whilst accepting that the agency may have erred in failing to notify interested persons of the issuance of the certificate, he stated that no injustice had been occasioned by such failure; that, whilst the objectors had rights, the appellants also had rights to their property, subject only to the need for any development on the property to take into account the need for the wise use of the land.

Unhappy with that decision, the first respondent noted an appeal to the Administrative Court in June 2018.

In the meantime, the appellants had submitted an application for a development permit with the City Council in May 2018.

On receipt of notification of the application, the first to fourth respondents, individually and separately, filed letters of objection. The Council's Director of Works then advised the appellants of these objections. The appellants responded to those objections and attached supporting documentation, including an environmental impact assessment report prepared at their instance in respect of Stand 201.

The Director of Works did not cause the response to be forwarded to the respondents.

Instead, he compiled a report recommending that the City Council's Environmental Management Committee, a sub-committee of Council, issue a development permit as requested.

The land on which the one hundred and twenty one cluster houses were to be developed was reflected as “Meadows of Monavale Township.”

The Director also suggested a number of conditions, including, ironically, the need to obtain an environmental impact assessment certificate - which had already been issued by the sixth respondent (the Environmental Management Agency).

On 23 July 2018, the City Council's Environmental Management Committee held a meeting to consider a total of fourteen matters, including the building permit application submitted by the appellants. The meeting commenced at 2:10pm and ended at 2:50pm. It recommended the granting of a development permit authorising the appellants to erect one hundred and twenty one cluster houses, subject to the conditions stipulated in the report compiled by the Director of Works.

In September 2018, the first to fourth respondents then filed an appeal with the Administrative Court against the issuance of the development permit.

By agreement between the parties, the two appeals were consolidated for purposes of the filing of the heads of argument and hearing.

In their grounds of appeal and submissions in respect of the development permit issued by the City Council, the first to fourth respondents attacked the decision to issue the permit on a number of bases:

(i) First, that the Environmental Management Committee of the Council is not a local planning authority, and, consequently, had no power to issue a development permit.

(ii) Second, that no proper application for a development permit had been filed with the Council.

(iii) Third, that the permit had been issued in the absence of a valid environmental impact assessment certificate, since the permit imposed, as one of the conditions for the grant of the permit, the need to secure an environmental impact assessment certificate.

(iv) Fourth, that the proceedings of the committee were tantamount to a kangaroo court as the committee had not adverted to the merits of the matter, and, in particular, the fact that this was a protected wetland, before resolving to grant the permit.

(v) Fifth, that the committee had resolved to grant the permit without affording the respondents the right to be heard. They submitted, that, the development permit had been improperly issued and that it should, as a consequence, be set aside.

In respect of the environmental impact assessment certificate, the respondents submitted as follows:

1. First, that there had been no public participation and the audi alteram partem rule had not been observed.

2. Second, that the certificate was void for vagueness as it did not identify the project, contrary to section 100(5) of the Environmental Management Act.

3. Third, that the certificate had been issued in respect of Stand 201, which did not exist, rendering the certificate void for vagueness; and

4. Fourth, that there had been a failure, on the part of the Minister and the Environmental Management Agency, to appreciate that environmental rights take precedence over private rights to land.

In its heads of argument filed in the Administrative Court, the City Council submitted as follows:

(i) First, that the mere failure to comply with one or other administrative provision does not necessarily result in a nullity. It depends on whether the statute envisages that the failure should result in a nullity. It also depends on its materiality.

(ii) Second, that a proper application for a development permit had been filed.

(iii) Third, the first to fourth respondents objections had been considered in the Director of Works report, and, therefore, the audi alteram partem principle had not been violated.

(iv) Fourth, that the Ramsar Convention had neither been approved by Parliament nor had it been incorporated into domestic legislation. Therefore, it was not binding on Zimbabwe.

(v) Fifth, that the social rights claimed by the respondents had to be reviewed against the appellants competing right to develop a property that belonged to them.

(vi) Sixth, that the environmental management committee exercised a power vested in it by Council itself.

In their heads of argument, dealing with both appeals, the appellants in this matter submitted as follows:

(a) The decision made by the environmental management committee of the City Council was a decision of the Council itself, as a local town planning authority.

(b) Second, that there was a proper application before the Council which cannot be impugned on the basis, that, having been made by a committee of Council, it had not been made by Council itself.

(c) Third, that the committee was not bound to formally hear the first to the fourth respondents as it was sufficient for written objections to be considered.

(d) Fourth, that the decision of the Administrative Court, holding that the environmental impact assessment certificate had to precede the issuance of a development permit, was wrong.

(e) Fifth, that the Ramsar Convention itself does not prohibit development on a wetland, but, instead, encourages the wise-use of such land.

In its determination, the court a quo found as common cause, that, the property belonging to the appellants is part of a wetland and that the piece of land on which the appellants intended to erect one hundred and twenty-one cluster homes was virgin and undeveloped. It found that the development was intended to take place on the unregistered Stand 201 measuring 9.35 hectares which the appellants had unsuccessfully attempted to shear off from the main Meadows of Monavale Extension.

It found, further, that, the omission to particularise that portion of the land on which the development was to take place was a serious error which should not have been condoned by Council.

The court further found, that, the failure to attach the signed consent of NMB Bank, which had a mortgage bond registered over the property, was a fatal irregularity.

In doing so, the court took into account the provisions of section 26 of the Regional, Town and Country Planning Act [Chapter 29:12] (“the RTCP Act”) which provides, that, an application for a permit shall be accompanied by the consent, in writing, of the holder of any real right registered over the property.

The appellants, not having justified why the application had not been accompanied by the consent in writing of NMB Bank, the court found that the defect rendered the application invalid.

Further, the court found that the development permit related to the larger undivided piece of land owned by the appellants. The environmental impact assessment certificate, to the contrary, related to the unregistered Stand 201 measuring 9.35 hectares.

It therefore found, that, the development permit, which related to the entire 16,2885 hectares, could not be predicated on an environmental impact assessment certificate issued in respect of 9.35 hectares of land. Moreover, the development permit made it clear that it had been issued to enable the erection of one hundred and twenty-one cluster houses.

The environmental impact assessment certificate, on the other hand, stated that it had been granted to the appellants to enable a housing development to take place on Stand 201 Monavale. The court found, that, it was impossible to ascertain the nature of the developments proposed by those two sets of documents.

As regards the application for a development permit filed by the appellants on 15 May 2018, the court a quo found that it relied on documentation annexed to an earlier application submitted in 2015.

It concluded, that, since an application that is not determined within three months is deemed to have been refused in terms of section 26(7) of the Regional, Town Country Planning Act, those documents could not have been relied upon in the application submitted on 15 May 2018.

The court accordingly found, that, the application for the development permit was defective in that respect and that it should not have been processed by the City Council. By necessary implication, it further found that the development permit issued pursuant to that application was also a nullity.

On the objections filed by the first to fourth respondents, the court noted, that, although four letters of objection had been forwarded to the City Council, the Director of Works had referred to only two objections in his write-up to Council. He did not indicate which two of the objections had been considered.

The court also found, that, the City Council had unlawfully shifted the onus of proof to the first to fourth respondents when it determined that their objections were not supported by evidence.

As regards the contention that Council had failed to properly address the implications of granting a development permit on an internationally-protected wetland, the court determined, that, whilst the appellants have the right to deal with the property in a manner they may choose, that right was attenuated by section 86 of the Constitution 2013, which provides that the enjoyment of rights and freedoms must be exercised reasonably and with due regard to the rights and freedoms of others.

It found, that, there was good reason for the view, that, the core of the wetland be left wild, untouched, and suitable for the diverse range of migrant birds, including some that are endangered species that come all the way from countries as far afield as Cameroon, Congo, and Kenya.

The court found, that, the construction of cluster houses would involve digging up foundations, clearing land, and erection of houses.

In these circumstances, so the court concluded, there was need to rely on the precautionary principle which is applicable where, due to unavailable scientific knowledge, there is uncertainty as to the future impact of the proposed development.

On the environmental impact assessment certificate, the court reiterated its earlier finding, that, this had been issued in respect of Stand 201, which does not exist. The certificate was issued in respect of the whole property measuring 16,2338 hectares. The first to fourth respondents had not been consulted during the preparation of the report which preceded the issuance of the certificate.

Consequently, the court also upheld the appeal against the grant of the certificate.

In the result, having upheld both appeals, the court ordered that the appellants, the City Council, and the Minister pay the costs of suit on the ordinary scale.

It is against that order that the two appeals were noted to this Court by the appellants and the City Council.

In their notice of appeal, the appellants relied on a number of grounds. I reproduce these hereunder:

“1. The Administrative Court fundamentally erred in failing to find that the first respondent, being a Trust, did not have legal capacity to have mounted the appeals that it mounted in the Administrative Court.

2. The Administrative Court further grossly erred in interfering with the discretion of the 5th respondent in condoning the reference to an undivided portion of the Meadows of Monavale, known as Stand 201 of Monavale, when such condonation had been done in the exercise of the administrative discretion by the 5th respondent.

3. The Administrative Court further erred in finding, that, the application for a development permit submitted to the 5th respondent was defective in that it had been accompanied by documents from a previous application when such attachments did not have the effect of invalidating the application.

4. The Administrative Court grossly erred in finding, that, the appellants failure to attach to their application for a development permit, submitted to the 5th respondent, the consent of NMB Bank was fatal to such application when there was no evidence that the said Bank had an interest in the land and was not argued by the parties.

5. The Administrative Court further erred in finding, that, the 5th respondent had violated the audi alteram partem rule and had therefore not properly considered the objectives of the 1st up to 4th respondents objectives to the development permit.

6. The Administrative Court further erred in its application of the concept of restrictive measures in section 86(2)(f) of the Constitution of Zimbabwe and finding, therefore, that the appellants could not carry out the development on the property in issue as part of the exercise of the right of ownership enshrined in section 71(2) of the Constitution of Zimbabwe.

7. The Administrative Court further erred in relying upon the precautionary principle in prohibiting the development proposed on the piece of land in issue by the appellants.

8. The Administrative Court grossly erred in finding, that, the environmental impact assessment certificate issued by the 6th respondent was void for vagueness when it related to an identifiable property and the correction of the certificate had been placed before the Court.”

The City of Harare, as appellant, also attacked the determination of the court a quo on a number of grounds which I quote verbatim hereunder:

“1. The court a quo erred in finding that the application for a development permit was defective in that it was accompanied by documents from a previous application when such deficiency, if any, did not have the effect of invalidating the permit.

2. The court a quo erred in finding that appellant had violated the audi alteram partem rule by failing to properly consider the objectives when there was clear evidence throughout the record of a consideration of the objections.

3. The court a quo erred in stopping a development on the bases of unproven likelihood of harm to the environment.

4. The Administrative Court erred by failing to arrive at the conclusion, that, the permitted development was consistent with the 'wise use' concept contained in the provisions of the Constitution, the Environmental Management Act, and the Ramsar Convention on the protection of the environment.

5. The court a quo erred in allowing immaterial and irrelevant objections to the permit and the Environmental Impact Assessment Certificate to guide it. It so erred to appreciate that this was a town planning matter and one to be dealt with in the wide sense.

6. At any rate, the court a quo erred in failing to consider that any deviation from the provision of the Regional, Town and Country Planning Act and the Environmental Management Act was not material enough to warrant nullification of the permit. It so erred in that it failed to consider the materiality principle.”

In their submissions, the appellants submitted as follows:

The first respondent, being a Trust, cannot sue or be sued in its name, but, rather, in the name of the trustees.

The appeal instituted by the Trust against the grant of the Environmental Impact Assessment Certificate was therefore invalid.

Although the High Court Rules 1971 define association to include a Trust, and further allow any such association the locus standi to sue or be sued in its own name, the Rules do not apply to the Administrative Court.

The Administrative Court (Miscellaneous Appeals) Rules 1980 SI 122/1980, do not have a provision similar to the High Court Rules. The first respondent (the Trust) should not, therefore, have been a party to the proceedings before the court a quo.

Further, the appellants submitted that the City Council, being a town planning authority, could quite competently delegate its functions to a committee of Council in terms of section 12(3) of the Regional, Town and Country Planning Act.

They also submitted, that, the Environmental Management Committee of the City Council was entitled to condone mis-references in the papers that were placed before it.

The complaint by the first to fourth respondents, on the incorrect description of the property, was therefore not a fundamental defect that warranted interference by the court a quo, especially because the court had accepted that the development was to take place on the appellants property measuring 16,2885 hectares. There was no requirement that the appellants identify the specific portion of that land where the development was to take place, particularly in view of the fact that the subdivision previously applied for had lapsed. The error was not serious and the objectors had been able to lodge their objections.

As regards the finding by the court a quo, that the application was invalid on account of the fact that documents from a previous application (that had lapsed) had been attached, the appellants submitted that these were supporting documents and constituted “such information as may be prescribed” as provided for in the Regional, Town, Country Planning Act. The fact that an application is deemed dismissed, in terms of section 26(7) of that Act does not mean documents from that application cannot be attached or used in a subsequent application.

On the finding by the court a quo, that, the failure to attach the consent of the NMB Bank was fatal, the appellants submitted that the issue had only been very vaguely referred to and that it had been assumed that it had been abandoned.

The parties had not addressed the court on this issue.

Moreover, being a question of fact, the four respondents had not shown whether the bonds in issue were still current.

It was therefore an irregularity for the court to make a finding on an issue of fact not traversed by the parties and which was not founded in the pleadings by the parties.

As regards the finding that the audi alteram partem principle had been violated, the appellants submitted that the four respondents objections contained in letters they had sent to the City Council had been considered before the City Council came up with a decision on the application for a developmental permit. Indeed, the objections were brought to the attention of the appellants who responded to each of the issues raised in the objections.

On the finding by the court a quo, that, the appellants could have adopted less restrictive measures in the usage of their land, they submitted that they were under no such obligation to sell the property to an organisation called Birdlife Zimbabwe. They have the right, in terms of section 72 of the Constitution, to deal with the property as they see fit.

On the further finding by the court a quo, that the precautionary principle applied in this case, they submitted that the appellants had obtained an environmental impact assessment certificate and had, in addition, undertaken a detailed impact assessment which was placed before the Council to enable it to come to a correct decision.

That document set out the measures which were to be taken to minimise any possible damage to the environment.

The fact that the property is situated on a wetland does not mean it cannot be developed. Indeed, in terms of the Ramsar Convention, it is the wise use of wetlands that is encouraged.

In any event, the property had been removed from the list of sites that fell under that Convention.

As regards the environmental impact assessment certificate, they submitted that the certificate had been issued in respect of a cluster development on a Stand identified as being a portion of the Meadows of Monavale. Having acknowledged the existence of the property measuring 16,2338 hectares upon which an intended subdivision, to be called Stand 201, was to be created, the court a quo could not then, at the same time, find that the certificate related to a non-existent property.

In his oral address, counsel made the following further submissions:

That, the issue of the locus standi of the first respondent had been raised during oral submissions but was not dealt with by the court a quo.

The four respondents cannot come to court saying they do not know where the development was to take place when they were involved in the attempt to purchase Stand 201. Everyone knew where the cluster houses were to be constructed, and, the fact that it was not formally subdivided made no difference.

As regards the issue of consent by NMB Bank, he submitted that the issue was neither raised nor argued before the court a quo.

On the documents from a previous application that were attached to the application for a development permit, he submitted that the judge failed to distinguish between the application itself and the supporting documents. There was no need to file the same documents over and over again.

As regards the letters of objection to the development permit application, he submitted that all the letters raised the same issues and were similarly worded.

On the merits of the dispute, he submitted that the court a quo did not address itself to the fact that Harare has a housing backlog.

There was nothing to suggest, that, if construction took place on an area constituting 1.5% of the Monavale vlei, comprising less than ten hectares, it would have the kind of harmful impact that the respondents have attempted to portray.

The court a quo was selective and made no attempt to strike a balance between the need to protect the environment, on the one hand, and the need to provide accommodation on the other.

In their heads of arguments, the first to the fourth respondents have submitted that the Ramsar Convention is binding on Zimbabwe, the country having acceded to the Convention and such accession having been ratified by Parliament.

The suggestion that the wetland may have been delisted is incorrect as the Government of Zimbabwe, in order to do so, would have to go through the process of delisting in line with the Convention. That process has not even been initiated, and the country continues to have obligations under the Convention.

In its decisive meeting to consider whether or not to grant the development permit, no consideration was given by the City Council to the ecological status of the land on which the proposed development was to take place, notwithstanding the fact, that, in their objections, the respondents had gone to great lengths to highlight the dire situation faced by residents in accessing water.

The issue before the City Council was of a highly technical nature, and, therefore, required specificity in terms of the size and location of the land to be developed and the exact number of houses to be constructed. This would have assisted the committee to properly assess the possible harm to the environment.

As regards the need to attach the written consent of NMB Bank, they submitted that the issue had been fully ventilated in their statement of appeal before the court a quo as well as their heads of argument. Moreover, evidence had been placed before the court to confirm that there were current bonds registered over the property.

There was need for the appellants to attach the consent of the Bank because its rights could be prejudiced. Having failed to attach such consent, the appellants further failed to show that any attempts had been made to advise the Bank as required by the law.

On the objections that they had raised in respect of the development permit, they submitted that the letters raised different issues. The chairperson of the first respondent objected on the basis that this was an ecologically sensitive and biologically diverse area which should not be tampered with. The Sopers, on the other hand, objected on the basis that there had been no prior consultation with the residents who were likely to be affected.

Moreover, the City Council, having received a response from the appellants, including a report on soil tests done at their instance, made no attempt to bring the response and new facts to the attention of the respondents.

In oral submissions before this Court, they disputed the suggestion that the first respondent, being a Trust, has no locus standi to institute proceedings against anyone.

The Administrative Court Act [Chapter 7:01], in section 13, provides that where there is a lacuna, the procedure applicable in the High Court would apply.

The High Court Rules allow, in Rule 7 and 8, a Trust to sue.

They further submitted, that, whilst the development permit refers to the entire piece of land and not Stand 201, no environmental impact assessment certificate was issued for the entire property, but, rather for Stand 201.

Counsel for the respondents further submitted, that, once the land was included as part of a Ramsar site, the appellants, as owners, lost the right to do as they pleased.

He also submitted, that, the environmental management committee of the City Council could not have properly considered fourteen applications, including the appellants development permit application, in forty minutes.

Despite the land being part of a wetland, they make no reference to this, and, all they did was recommended that the permit be granted.

Accordingly, the respondents prayed for the dismissal of both appeals with costs.

The fifth respondent's submissions mirrored its previous submissions before the court a quo. In addition, it also submitted, that, the issue of consent of the Bank had not been raised in the court a quo.

Further, that, although the minutes of the Council meeting refer to only two objections, the objectors concerns had been taken into account.

Lastly, it was submitted that the mere failure to comply with one or other administrative provision does not mean that the whole procedure necessarily becomes void. The absence of the consent of the Bank was therefore not fatal.

On a consideration of the above submissions, it seems to me that the issues that arise for determination fall into four broad categories:

(i) The first is whether the first respondent, a Trust, can, in law, sue or be sued?

(ii) The second is whether the Environmental Impact Assessment Certificate, on which the City Council largely relied in coming to the decision to grant a Development Permit, is valid?

(iii) The third is whether the Council was correct in granting the Development Permit?

Depending on the determination of this Court on the above issues, the last issue that may arise is:

(iv) Whether the court a quo was correct in relying on the precautionary principle in coming to the conclusion, that, the land in question could not be developed without endangering its status as a wetland?

The position may now be taken as settled in our common law, that, a Trust is not a legal persona and that it does not have juristic personality. It represents nothing more than an arrangement. As a rule, a Trust can only institute proceedings in the name of the trustees: see Magnum Financial Holdings (Pty) Ltd v Summerly NNO 1984 (1) SA 160.

As a corollary, a Trust is incapable of holding assets, entering into contracts or undertaking any other legal formalities in its own name.

In Crundall Brothers (Pvt) Ltd v Lazarus N.O. & Anor 1991 (2) ZLR 125, the court accepted that a Trust is not a legal persona and that the trustees are the persons to be considered as having the locus standi to sue or be sued.

In Musemwa & Ors v Gwinyai Family Trust & Ors HH136-16, the High Court of Zimbabwe aptly summarised the status of a Trust in the following words:

“The concept of a Trust originated in English Law over 900 years ago and continues to evolve. A Trust is a legal relationship of parties which usually involve the founder, Trustees, and beneficiaries. The relationship is created by the founder, who places assets under the control and administration of the Trust for the benefit of named persons, the beneficiaries. It is created by a Trust Deed. A Trust has no legal personality and the common law does not recognise a Trust as having locus standi to sue in its own name. If a Trust is to be clothed with juristic personality, it would be a persona made up of assets and liabilities. In fact, the assets and liabilities in a Trust vest with the Trustee. When it sues or is being sued, a Trust should be represented by its Trustees in whom the Trust's assets and liabilities vest.”

That the above remarks correctly reflect our common law there can be no doubt.

However, Order 2A of the High Court Rules 1971 (which Rules were applicable, but have been repealed and replaced by the High Court Rules 2021, S.I. 202/21 with effect from 23 July 2021) provided that an associate, which includes a trustee, may sue or be sued in the name of their association.

That provision has been re-enacted in Rule 11 of the High Court Rules 2021.

The Rule defines “associate” in relation to a Trust, to mean a trustee. The Rules also provide that associates may sue or be sued in the name of their association. This means that a trustee can sue or be sued in the place of the Trust, and, conversely, a Trust can sue and be sued in its own name.

To this extent, therefore, the Rules have modified the common law in order to create locus standi for a Trust.

The above observations apply to High Court proceedings, not proceedings from the Administrative Court.

The Administrative Court Act [Chapter 7:01], however, has made provision for the High Court Rules to apply in a casus omissus. In section 13(3), the Administrative Court Act provides as follows:

“(3) In any proceedings not covered by rules in terms of subsection (1) or any other enactment —

The rules relating to practice and procedure in the High Court shall, where appropriate, apply; and in any case not contemplated by rules made in terms of subsection (1) or referred to in paragraph (a), the Court shall act in such manner and on such principles as it deems best fitted to do substantial justice and to effect and carry out the objects and provisions of this Act, and may, for that purpose, give instructions on the course to be pursued which shall be binding on the parties to the proceedings.”

The above provision is clear and unambiguous.

In any proceedings before the Administrative Court that are not covered by the Rules of that court or any other enactment, the High Court Rules shall, where appropriate, apply. The High Court Rules apply whenever a Trust or trustee is involved in proceedings before the court.

This is not the only instance where the law has made provision for a casus omissus in the Rules.

Rule 45 of the Constitutional Court Rules 2016 provides, that, in any matter not dealt with by the Rules, the practice and procedure of the Court shall, subject to any direction to the contrary by the court or a judge, follow as near as may be the practice and procedure of the Supreme Court, or, where the Supreme Court Rules are silent, of the High Court.

Rule 73 of the Supreme Court Rules 2018 also provides for the application of the Rules of the High Court in any matter not covered by the Rules.

In the circumstances, a Trust appearing before the Administrative Court can sue or be sued in its own name, rather than in the name of its trustees.

In the present case, the Trust Deed was amended to empower the Trust to sue or be sued. The first respondent, therefore, had the requisite standing to institute proceedings in its Trust name.

The submission by the appellants in this regard, therefore, cannot succeed.