GWAUNZA
JA: This
is an appeal against part of the judgment of the High Court, Harare,
handed down on 16 October 2013. The specific part of
the judgment appealed against reads as follows:
“(1)…
(2)
The alternative relief is hereby granted and accordingly the
applicant is granted leave in terms of section 6(b) of the
Reconstruction of State Indebted Insolvent Companies Act [Cap
24:27]
to institute any action or proceedings in any court or tribunal of
competent jurisdiction in Zimbabwe against SMM HOLDINGS (PVT) LTD
(under reconstruction), to claim payment of US$4,350,000.00 or part
thereof together with interest thereon at the prescribed rate of 5%
per
annum
and costs of suit or any other relief available to the applicant at
law.
(3)
The respondent shall bear 50% of the applicant's costs of suit.”
Although
the appellant filed detailed grounds of appeal, it is agreed that two
main issues arise in this appeal[1]. These
are:
(a)
whether there was a proper application before the court a
quo;
and
(b)
whether the court a
quo
was correct in holding that the appellant could not consider the
merits of the respondent's complaint in relation to the question of
the grant of leave.
In
addition to these two issues, the appellant also attacks the decision
by the court a
quo
to award fifty per cent of the costs to the respondent.
The
background to the dispute may be summarised as follows:
The
appellant was appointed Administrator of SMM Holdings (Private)
Limited (“SMM”), an entity under reconstruction, on 6 September
2004.
The
appellant on 9 October 2009 entered into an agreement with the
respondent in terms of which the latter purchased and paid for
certain Chrome Mining claims belonging to SMM (Mashava Area “E”)
for US$4,350,000.
Despite
registration of the mining claims in the respondent's name, and its
assumption of operations on the location in question, it met with
fierce resistance from a third party who claimed ownership of the
same location. The third party also made it virtually impossible
for the respondent to enjoy the benefit of the claims that it had
purchased.
Lines
of communication that thereafter opened between the respondent and
the appellant to resolve these problems yielded no positive results.
This
led the respondent by letter dated 3 August 2012, to apply to the
appellant for leave to commence legal proceedings against SMM for
cancellation or confirmation of cancellation of the sale agreement as
well as a refund of the purchase price paid.
The
application to the appellant was made in terms of section 6(b) of the
Reconstruction of State Indebted Insolvent Companies Act [Chapter
24:27]
(“the Reconstruction Act”).
Having,
for over one year, received no response from the appellant the
respondent approached the High Court claiming, in the alternative,
the relief that it was granted and against which the appellant
has filed this appeal. The application was made in terms of
section 3(1)(b) and 4(1) of the Administrative Justice Act [Chapter
10:28].
Sections
3 and 4 of the Act read as follows:
“3.
Duty of administrative authority
(1)
An administrative authority which has the responsibility or power to
take any administrative action which may affect the rights, interests
or legitimate expectations of any person shall —
(a)
act lawfully, reasonably and in a fair manner; and
(b)
act within the relevant period specified by law or, if there is no
such specified period, within a reasonable period after being
requested to take the action by the person concerned; and (my
emphasis)
(c)
where it has taken the action, supply written reasons therefor within
the relevant period specified by law or, if there is no such
specified period, within a reasonable period after being requested to
supply reasons by the person concerned.
4.
Relief against administrative authorities
4(1)
Subject to this Act and any other law, any person who is aggrieved by
the failure of an administrative authority to comply with section
three may apply to the High Court for relief. (my
emphasis)
(2)
Upon an application being made to it in terms of subsection (1), the
High Court may, as may be appropriate -
(a)
confirm or set aside the decision concerned;
(b)
refer the matter to the administrative authority concerned for
consideration or reconsideration;
(c)
direct the administrative authority to take administrative action
within the relevant period specified by law or, if no such period is
specified, within a period fixed by the High Court.
(d)
direct the administrative authority to supply reasons for its
administrative action within the relevant period specified by law or,
if no such period is specified, within a period fixed by the High
Court;
(e)
give such directions as the High Court may consider necessary or
desirable to achieve compliance by the administrative authority with
section three.
(3)
Directions given in terms of subsection (2) may include directions as
to the manner or procedure which the administrative authority should
adopt in arriving at its decision and directions to ensure compliance
by the administrative authority with the relevant law or empowering
provision.”
The
court a
quo
did not grant any of the forms of relief listed in section 4(2) of
the Act but took it upon itself to grant the leave, that is, take the
action that the appellant qua
administrator should have taken, as requested by the respondent.
I
will now consider the appellant's grounds of appeal.
1.
Whether or not the application was properly before the court a
quo
Mr
Mpofu,
for the appellant, argues that section 4 of the Act is an embodiment
of the common law grounds for review and the respondent should
accordingly have brought a review application before the court a
quo,
in terms of Order 33 of the High Court of Zimbabwe Rules 1971.
By
essentially bringing proceedings which “in substance” were for
review, without complying with the provisions of the law relating to
review proceedings, the respondent, contends Mr
Mpofu,
had employed the wrong procedure. The result was that the application
was not properly before the court a
quo.
Mr
Mpofu
further
challenges what he refers to as the “contradictory” conclusion of
the court a
quo
in that, after concluding that the application was not a review, it
went on to justify its interference on the basis of review
principles.
Mr
Girach
for
the respondent, on the other hand, contends that the application a
quo
was not one for review and therefore Rule 257 of the High Court Rules
did not apply.
The
application a
quo
was primarily a constitutional challenge to specific provisions of
the Reconstruction Act. In the alternative, the respondent sought
leave to sue the appellant.
Further,
and in any event, a proper case had been made out by the respondent
for leave to be granted.
Lastly,
he contended that at the time the application for leave was filed in
the court a
quo,
the request to the Administrator for the same relief, dated 3 August
2012, had not been adjudicated upon, meaning that there was no
decision, nor were there any proceedings, to be reviewed.
In
holding that the application before him was not one for review, the
judge a
quo
stated as follows in his judgment:
“Mr
Mpofu,
for the respondent protested that a wrong procedure was employed as
section 4 of the Administrative Justice Act is an embodiment of the
common law grounds for review. For that reason the applicant should
have brought a review application in terms of Order 33 of the High
Court Rules.
I
do not agree.
Section
4 allows an aggrieved party to seek recourse in this Court. It
makes no reference to a review application. I agree with Mr Moyo, for
the applicant that if the legislature desired to provide for a remedy
of review in terms of Order 33, it would have specifically said so.
It however elected to create a statutory remedy in terms of which a
party is entitled to approach this court by application where the
administrative authority has come short.”
I
find little to fault in the reasoning of the court a
quo
on this point.
As
correctly stated, section 4(1) of the Administrative Court Act (“the
Act”) provides that the statutory relief referred to by the judge a
quo
may be sought by way of an application to the High Court. However
no specific format for such application is prescribed.
While
a review in terms of the High Court Rules is a special form of
application, there is nothing in section 4(1) to suggest that any
other form of application for judicial review would in any way offend
against that sub-section as long as it meets the requirements of an
ordinary court application.
I
find this position to be fortified by section 26 of the High Court
Act [Chapter
7:06]
which reads as follows:
“PART
V
POWERS
OF REVIEW
26.
Power to review proceedings and decisions
Subject
to this Act and
any other law,
the High Court shall have power, jurisdiction and authority to review
all proceedings and decisions of all inferior courts of justice,
tribunals and administrative authorities within Zimbabwe.
27.
Grounds for Review
(1)
Subject to this Act and
any other law,
the grounds on which any proceedings or decision may be brought on
review before the High Court shall be —
(a)
absence of jurisdiction on the part of the court, tribunal or
authority concerned;
(b)
interest in the cause, bias, malice or corruption on the part of the
person presiding over the court or tribunal concerned or on the part
of the authority concerned, as the case may be;
(c)
gross irregularity in the proceedings or the decision.
(2)
Nothing
in subsection (1) shall affect any other law relating to the review
of proceedings or decisions of inferior courts, tribunals or
authorities.”
(my
emphasis)
My
understanding of this provision is that the High Court Act
contemplates and permits review proceedings that are brought before
it in terms of “any other law.”
Specifically,
judicial review may be done in terms of another statute, for instance
the Administrative Justice Act, as happened in
casu.
Further
to this, and as clearly indicated above in subsections (1) and (2) of
section 27, grounds for review are not limited to those
particularised in that section. Other laws can properly dictate the
consideration of, or specify, other grounds on the basis of which
proceedings of a lower court or tribunal may properly be reviewed.
Mr
Mpofu
also argues that an allegation to the effect that a public official
has failed to give reasons or to make a decision altogether, is a
reviewable issue. He has referred the court to a number of decisions
to support this contention. (Muchapondwa
v Madake and Others
2006
(1) ZLR 196 (H); and
S
v Mapiye
(S)
– 214/88).
These
authorities in the main relate to judicial officers who, after
hearing argument in matters before them, made and communicated their
decisions to the parties, but failed to provide reasons for such
decisions.
In
addressing this oversight, the learned judge in S
v Makawa & Another
1991
(1) ZLR 142 (SC at 146D-E) stated as follows;
“Although
there are indications in this case that the Magistrate may have
considered the case, a large portion of those considerations remained
stored in his mind instead of being committed to paper. In the
circumstances this amounts to an omission to consider and give
reasons. There is gross irregularity in the proceedings… see R
v Jokonya
1964
RLR 236 …”
In
casu
it is evident that the appellant, who must have had reasons for not
acting on the request made to him by the respondent, chose not to
commit them to paper nor communicate them to the latter. The
reasons therefore remained “stored” in his mind.
Based
on the authorities cited I am satisfied that the failure by the
appellant as an administrative authority to take action when properly
requested to do so, constituted an irregularity which may properly be
the subject of judicial review.
However,
for the reasons stated above, I am not persuaded that the only form
of review proceedings in the circumstances of this case, would be
those in terms of Order 33 Rule 257 of the High Court Rules.
It
should be noted that in any case an attempt to satisfy the
requirements of Order 33 of the High Court Rules, in particular Rule
259, given the circumstances of this case, might present practical
difficulties. The rule provides as follows;
“259.
Time within which proceedings to be instituted
Any
proceedings by way of review shall
be instituted within eight weeks of the termination of the suit,
action or proceeding in which the irregularity or illegality
complained of is alleged to have occurred: Provided that the court
may for good cause shown extend the time.” (my emphasis)
The
appellant in
casu
took no action at all following the respondent's request for leave
to sue SMM. There was effectively no 'termination' to speak of
since, by its nature, the appellant's inaction was a continuing
default. The ascertainment of a date from which to reckon the 8 weeks
stipulated in Rule 259 would thus be problematic.
I
find, in any case, that the appellant's conduct is contemplated by
section 3(1)(b) of the Act, cited above.
His
failure to act within a reasonable period after being requested to do
so by the respondent, constituted a ground for review which, albeit
not listed in section 27 of the High Court Act, was nevertheless
established in terms of “any other law”.
Accordingly
the respondent was within its rights to approach the High Court with
an application in terms of the Act, for the relief that it had
requested from the appellant but did not secure.
In
all respects therefore I find there is no merit in the ground of
appeal that alleges that the application a
quo
was not properly before that court.
2.
Whether the court a quo was correct in holding that the appellant
could not consider the merits of the respondent's complaint in
relation to the question of the grant of leave
This
ground of appeal challenges the competency of the order made by the
court a
quo,
whose effect was to effectively rule out any opportunity for the
appellant to consider the merits of the respondent's request to it,
for leave to sue an entity under its administration.
As
already indicated, the court a
quo
did
not grant any of the specific forms of relief provided for in section
4(2) of the Act. The judge a
quo,
being
fully cognisant of the provisions in question, justified his non
observance thereof, in the following terms:
“The
applicant has urged of me the grant of the leave to sue which should
have been granted by the respondent mainly because the respondent is
not going to grant the leave, having already nailed his colours onto
the mast, and in any event because I have all the facts with which to
base such decision. While it is rare that the court would be
justified in usurping the decision making function of the
administrative authority, McNALLY JA set out four situations where
the court might take such action in Affretair
(Pvt) Ltd & Anor v M.K. Airlines (Pvt) Ltd
1996
(2) ZLR 15 (S). These are:
1.
Where the end result is a foregone conclusion and it would be a waste
of time to refer the matter back;
2.
Where further delay could prejudice the applicant;
3.
Where the extent of bias or incompetence is such that it would be
unfair to the applicant to force it to submit to the same
jurisdiction again; and
4.
Where the court is in as good a position as the administrative body
to make the decision.
In
this case, although some of the requirements may be said to be
mutually exclusive, I am of the view that all of them exist.
To
my mind it is a foregone conclusion that the applicant should be
granted leave, although the respondent thinks otherwise. The
applicant has waited for leave for more than a year and further delay
would be unfair to him. I have already expressed my suspicion of the
existence of bias the respondent being an interested party. In any
event, I am in as good a position to make the decision as the
respondent.”
It
is pertinent to note that the Affretair
case that the judge a
quo
premised
its decision on, was an application for review in terms of Order 33
of the High Court Rules.
It
is on this basis that Mr Mpofu
for the appellant argued that the court a
quo
contradicted itself by justifying its interference on the basis of
review proceedings, when it had found that the proceedings in
question were not those for a review.
This
argument seems to suggest that review proceedings that are brought in
terms of Order 33 of the High Court Rules enjoy a monopoly over the
grounds on which interference with an order or proceedings of an
inferior court or tribunal, may be justified.
I
am not persuaded that is the case.
As
indicated above sections 26 and 27 of the High Court Act [Chapter
7:06]
and Rule 256 of the High Court Rules do not rule out review
proceedings being brought in terms of “any other law.”
I
take the view that such other review proceedings may properly rely on
the same or similar grounds as a basis for some interference or
other, by a superior tribunal, with a lower tribunal's order or
proceedings[2].
What
is important at the end of the day is that justice and fairness
prevail, following upon a court ruling that is premised on cogent
reasoning and sound principles of law.
I
am satisfied, in any case, that the propriety of the relief granted
by the court a
quo
is
put beyond doubt when regard is had to section 2(2) of the Act, which
reads as follows:
“(2)
The provision of this Act shall be construed as being in addition to,
and not as limiting, any other right to appeal against, bring on
review or apply
for any other form of relief in respect of any
administrative actions to which this Act applies.” (my
emphasis)
Related
to the circumstances of this case, I find that while section 4(2) of
the Act lists the types of relief the High Court could have granted,
that list is not exhaustive. Rather, it is additional to any other
relief that may be sought in respect of any administrative action
relevant to the Act.
The
respondent's application to the appellant for leave to sue SMM,
dated 3 August 2012 was, for over a year and in the words of the
court a
quo
“met with deafening silence” from the latter. Not only was
there silence, no reasons were proffered for it within a reasonable
or any, period at all.
In
my view, while the High Court could have sent the matter back to the
administrator with specific instructions or conditions on how to
address the respondent's request for leave, it was nevertheless,
within its competence in terms of section 2(2) of the Act, to grant
the relief sought.
I
am persuaded that a proper case has been made for the leave in
question to be granted by the court a
quo.
Mr
Mpofu
argues inter
alia
in respect of the order granted by the court a
quo,
that the court took the incorrect position that the merits or
demerits of the matter were irrelevant. He contends that section 6(b)
of the Reconstruction Act requires the Administrator to consider a
matter and deal with it on the merits.
I
am not persuaded by this argument.
The
facts of this matter show, and the papers before the court confirmed,
that the appellant was singularly reluctant to grant the leave sought
from him by the respondent. The appellant made this very clear in his
opposing papers. It may in fact be assumed from this attitude that
the appellant must have considered the merits of the request and that
this had influenced his decision not to act on it. That being the
case, the court a
quo
and indeed the respondent cannot be blamed for, in my view, safely
assuming that the appellant's decision on the merits of the request
for leave would have been negative.
It
is evident from the judge's reasoning, cited above, that after
considering the papers before him which revealed to an appreciable
extent the merits of the case, he took the view that he: (a) had all
the facts on which to base the decision that he made; and
(b)
was in as good a position as the administrator to make such decision.
The
Judge was also persuaded that any further delay in resolving the
dispute would prejudice the respondent.
I
find no reason to fault the judge's reasoning.
To
my mind, there can be little doubt that the respondent did have a
grievance. As correctly submitted by Mr Girach,
it has paid nearly $4.5 million but, through no fault of the
respondent itself, has not enjoyed nor been allowed to enjoy the
benefit of its investment.
I
am persuaded by the further contention that, in any case, the factual
position of the dispute as well as its merits or demerits will
ultimately be a matter for the trial court. At this stage all that
has been granted is leave for the respondent to commence proceedings
against SMM, and possibly the appellant as well, for the redress that
it wishes to secure. All parties will therefore have their day in
court, as it were.
In
the final result, I find that the appellant's second ground of
appeal lacks merit and must be dismissed.
3.
Costs
The
final ground of appeal challenges the quantum
of costs awarded against the appellant, which the court a
quo
justified thus in its judgment:
“Regarding
the question of costs, the applicant (respondent) has been partially
successful given that its main application for the declaration of
section 6 as unconstitutional has not found favour with me, while the
alternative claim has. For that reason, I consider that it cannot
recover all its costs. It has only made a case for 50 per cent of its
costs.”
The
appellant contends that the judge a
quo
exercised his discretion injudiciously in respect of the fifty per
cent award of costs, given that the court had considered three main
issues and found for the respondent in respect of only one of them.
Accordingly, the appellant contends, the costs for each of the three
issues should have been thirty three per cent.
I
am not persuaded by this contention.
A
look at the draft order of the respondent in the court a
quo
clearly shows that it sought, apart from costs, one main and one
alternative form of relief. It was successful in respect of the
alternative relief sought. To the extent that costs could be
apportioned based on a mathematical calculation of the issues
considered by the court, the 50 per cent, even by the appellant's
own formula, would be reasonable. I however entertain some doubt as
to the practicality of such an approach.
Mr
Mpofu
argues in the alternative that even if only two issues were
determined by the court a
quo,
there should either have been no order as to costs, or each party
should have borne its own costs.
I
hold a different view.
All
that the respondent in reality craved was the removal of any obstacle
to the prosecuting of its claim against SMM. It sought two orders in
the alternative, either one of which would have given the respondent
the relief it craved. The court granted the alternative relief, even
though it and all the parties had expended time in arguing and
considering the merits or demerits of the main relief sought by the
respondent. Since the respondent in the end secured the entirety of
the relief that it wanted, my view is that it was entitled to part,
if not all, of its costs.
However,
there having been no cross appeal by the respondent on this aspect,
there would be no basis for interference at this stage.
Costs
being a matter for the court's discretion, I do not in any case
find that this discretion was exercised injudiciously by the judge a
quo,
when he ordered the appellant to bear half of the costs.
In
all respects, therefore, I find that the appeal lacks merit and
should be dismissed.
It
is in the result ordered as follows:
“The
appeal be and is hereby dismissed with costs.”
GARWE
JA: I
agree
PATEL
JA: I
agree
Dube
Manikai and Hwacha, Appellant's Legal Practitioners
Kantor
and Immerman, Respondent's Legal Practitioners
[1]
Appellant's heads of argument paragraph 1
[2]
For instance, in Johannesburg
Consolidated Investment Co and Anor v Johannesburg City Council 1903
TS 111
the
court distinguished three types of reviews, being review by summons,
a wider power of review granted by statute and thirdly……review by
motion
