MAKARAU
JCC:
This
is an application for direct access to this Court.
If
the application is granted, it is the applicant's intention to
approach this Court in terms of section 85(1)(a) of the Constitution
of Zimbabwe, alleging and arguing that a judgment of the Supreme
Court handed down on 31 December 2020 infringed his dual rights to
equal protection and benefit of the law and to a fair hearing before
an independent and impartial court.
Background
The
applicant owed the second respondent the sum of US$327,345.77 plus
interest thereon at the rate of fifty percent per annum. On a date
that is not material, the second respondent obtained judgment in the
High Court against the applicant for the payment of the debt together
with the accrued interest.
The
applicant failed to satisfy the judgment debt.
In
due course, the first respondent attached the applicant's farm and
sold it by public auction. The sale realised the sum of
US$205,000.00. The applicant successfully objected to the sale. The
first respondent set the sale aside, accepting that the sale had been
conducted in an irregular manner.
It
had not been preceded by a nulla
bona
return against the applicant's movables and the property had been
poorly described in the advertisement flighted before the sale.
In
his ruling setting aside the sale, the first respondent indicated
that he would offer the property for sale by private treaty for the
following thirty days on certain specified conditions.
The
first respondent proceeded to sell the property to the fourth
respondent by private treaty for the sum of US$825,000.00.
Clearly
not anticipating any further objections from the applicant, the first
respondent advised the judgment creditor's legal practitioners of
the sale by letter, which he also copied to the applicant. In the
same breath, he advised the parties that he had declared the fourth
respondent the purchaser of the property and had consequently
confirmed the sale in accordance with the rules of court. The germane
part of the letter reads:
“I
refer to the sale in the above matter and advise that on 27 February
2018, the Sheriff declared and confirmed the highest bidder Paperhole
Investments (Pvt) Limited to be the purchaser at the sum of
US$825,000.00 after the property was sold by private treaty.”
The
letter advising and confirming the sale at the same time was written
on 27 February 2018, the same date on which the sale was concluded.
Upon
receipt of his copy of the letter, the applicant approached the first
respondent, intending once again to object to the sale.
The
first respondent raised the defence of functus
officio.
He advised the applicant that after confirming the sale, his mandate
was discharged and the applicant had to approach the High Court for
any possible relief.
In
due course, the applicant filed an application for review in the High
Court, seeking an order setting aside the confirmation of the sale.
He alleged that such confirmation was irregular and not in accordance
with the rules of the High Court.
The
application was opposed by all the respondents save for the third.
In
opposing the application before the High Court, the first respondent
stated in his opposing affidavit that he had declared the fourth
respondent as the purchaser and had confirmed the sale in the same
breath because it was his reading of the rules of court that the
applicant had no right to object to the second sale. It was his
considered position that the rules did not permit him to entertain
multiple objections in respect of the same property sold in
execution.
Dismissing
the first respondent's contentions, the High Court upheld, and
correctly so in my view, the applicant's right to challenge the
second sale.
It
found that the applicant's right to object to any sale of his
property in execution was not limited by the certain number of
objections he had taken. For as long as there was a sale in execution
against his property, the applicant had the right to object to any
such sale on the grounds given in the law.
The
High Court however went on to dismiss the application for review on
the basis that the applicant had failed to disclose in the papers
before the court the grounds of his objection to the second sale.
Aggrieved
by the dismissal of the application for review, the applicant
appealed to the Supreme Court.
Before
that court, the contended that once the High Court had upheld his
right to object to the second sale, it ought to have given him an
opportunity to lodge his objection with the first respondent in
accordance with the rules.
It
was his argument that the nature and content of his objection,
embodying the recognised grounds of objecting to the sale, was not an
integral part of the application for review such that its absence
would be fatal to that application.
Fully
developed, it was his argument that the law did not require him to
lodge his objection to the sale with the court in the application for
review, but to lodge it with the first respondent once the court had
upheld and protected his right to object.
Viewed
differently, he argued that the High Court had wrongfully conflated
the application seeking the declaration of his right to object to the
second sale with the procedure that he had to adopt to enjoy that
right.
In
its judgment, the Supreme Court took a few steps backwards and,
without making any reference to the notice of appeal or seeking
further submissions from the parties, found that the applicant had
not lodged with the first respondent an objection to the second sale
as was required of him by Rule 359(1) of the High Court Rules 1971
(now Rule 71(38)).
After
setting out the relevant rule in detail, the Supreme Court found that
the applicant had not complied with the provisions of the rule,
which, in its view, is worded in peremptory terms.
For
emphasis, the court a
quo
went further to hold that there was no provision in the rule that
imposes a duty on the first respondent to invite persons to submit
objections to the confirmations of the sale of immovable property is
execution of court judgments.
The
above finding became the ratio
decidendi
of the Supreme Court judgement.
The
application for leave
Respecting
the finality of the judgment of the Supreme Court, the applicant
brought this application for leave. It is his intention to bring an
application alleging that the Supreme Court judgment breaches his
right to equal protection and benefit of the law and the right to a
fair hearing before an independent and impartial court. He submitted
in this regard that the Supreme Court Judgment is erroneous both in
fact and in law.
In
his application, the applicant raised four main arguments.
(i)
Firstly, he argued that although the judgment of the Supreme Court
was on a non-constitutional issue, it threatened the court's claim
to judicial authority in that it infringed his right to judicial
protection.
(ii)
Secondly, he alleged that the Supreme Court failed to act in
accordance with the law governing the proceedings that were before
it, which failure disabled it from making a decision on the
non-constitutional matter that was before it.
(iii)
In the third instance, he argued that the failure by the court to act
in accordance with the law governing the proceedings that were before
it violated his rights to equal protection and benefit of the law and
a fair hearing before an independent and impartial court.
(iv)
Finally he alleged that the judgment of the court a quo was
irrational and arbitrary.
I
shall return to these four arguments in some detail shortly.
The
application was opposed again by the first, second and fourth
respondents.
The
first respondent, without necessarily accepting that the Supreme
Court may have erred in its approach, argued that the Constitution
protects the right to access a legal system that is fair but not
necessarily infallible.
The
second respondent contended that since there was no constitutional
issue before the Supreme Court, its decision is final and cannot
found a cause of action for the intended application under section
85(1) of the Constitution.
The
fourth respondent denied that the applicant had demonstrated that his
rights had been breached as alleged or at all. On that basis, it
argued that it was not in the interests of justice that the
application for leave be granted.
In
my view, the contention by the fourth respondent crystallises the
only issue that falls for determination in this application. It is
whether it is in the interests of justice that the applicant be
granted leave to bring the intended application.
This
is so because during oral argument, the first respondent formally
abandoned his opposition to the application and placed himself in the
hands of the Court.
This
is the proper stance that he ought to have taken right from the
beginning.
As
an officer of this Court, it is not appropriate that the first
respondent pitches tent with any of the litigants and lends the
weight of his office in that corner.
No
issue can thus arise from the contentions by the first respondent.
In
a similar vein, the contentions of the second respondent cannot give
rise to any issues for determination.
It
is the settled position at law that a judgment of the Supreme Court
on a non-constitutional issue, whilst not appealable, is open to
review if it infringes a fundamental right or freedom. (See Martin
v Attorney-General 1993 (1) ZLR 153 (SC); Matamisa v Mutare City
Council and Another 1998 (2) ZLR 439 (SC); Lytton Investments
(Private) Limited v Standard Chartered Bank and Another CCZ 11/18;
and Denhere v Denhere CCZ 9/19).
Thus,
the only issue that remains for determination is raised for and on
behalf of the fourth respondent.
The
Law
An
application for leave to approach this Court directly is filed and
determined in accordance with Rule 21 of the Constitutional Court
Rules 2016. The Rule enjoins the Court in considering such an
application to be satisfied that it is in the interests of justice
that the matter be brought directly or at all, to this Court.
Rule
21(8), in particular, provides specific guidance to the Court in
determining when it is in the interests justice that direct access be
granted in the following terms:
“In
determining whether or not it is in the interests of justice for a
matter to be brought directly to the Court, the Court or judge may,
in addition to any other relevant consideration, take the following
into account -
(a)
The prospects of success if direct access is granted;
(b)
Whether the applicant has any other remedy available to him or her;
and
(c)
Whether there are any disputes of facts in the matter.”
The
above strictures constitute very broad guidelines to the Court. These
guidelines apply in general terms to all applications for direct
access.
In
an application such as the one before the Court, where the allegation
is made that a Supreme Court judgment has infringed one or more of
the applicant's fundamental rights and/or freedoms, the applicant
specifically bears a double–barrelled onus in establishing that it
is in the interests of justice that he or she be granted direct
access:
(i)
He or she must show, in the first instance, that the Supreme Court
was disabled from rendering a decision on the matter that was before
it.
(ii)
In the second instance, he or she must allege and demonstrate that
the judgment infringes one or more of his or her fundamental rights
and/or freedoms.
A
consideration of these two aspects will guide the Court is
establishing whether it is in the interests of justice that direct
access be granted.
Regarding
the first instance referred to above, I wish to note in passing that
the four arguments raised by the applicant in his application and
which I have referred to above correctly serve to illustrate the
nature of the error that the Supreme Court must have fallen into to
give rise to the cause of action.
The
four arguments borrow heavily from the language employed in the
decided cases that I have cited above.
The
authorities hold that the decision of the Supreme Court must be
arbitrary or irrational so as to threaten the claim of the court to
judicial authority. The arbitrariness or irrationality of the
decision must arise from a demonstrable failure by the Supreme Court
“to
act in accordance with the requirements of the law governing the
proceedings or prescribing the rights and obligations subject to
determination.” (See Lytton Investments (Private) Limited, supra).
I
now proceed to analyse whether the applicant has established that it
is in the interests of justice that he be granted direct access to
this court, having in mind the double-barrelled onus that he bears.
Analysis
I
turn first to the Supreme Court decision.
The
finding by the Supreme Court that the applicant had not lodged an
objection with the first respondent to trigger the exercise of
discretion by the first respondent in terms of the then Rule 359 of
the High Court Rules was clearly not in answer to any of the issues
that arose from the appeal or could have risen therefrom.
This
is so because it was common cause amongst the parties that the
applicant was not afforded the mandatory fifteen days within which to
lodge the objection to the second sale.
It
was this denial of the right, created and afforded him by the law,
which triggered the litigation before the High Court.
In
the circumstances of this application, the conclusion that the
Supreme Court did not determine the real issue that was placed before
it by the appeal is unavoidable.
The
import of a failure by the Supreme Court to deal with the issues
raised by the appeal has been discussed in a number of decisions of
the Supreme Court itself: see Nzara
& Others v Kashumba N.O. and Others SC 18/18; A Adam &
Company (Private) Limited & Others v Good Living Real Estate
(Private) Limited & Others SC 18/21; Zimbabwe Revenue Authority v
Packers International (Private) Limited SC 28/16; and Gwaradzimba
N.O. v C.J. Petron & Company (Proprietary) Limited SC12/16.
It
is the settled position that any failure to determine the issue or
issues arising from the dispute between the parties is a misdirection
gross enough to vitiate the order made at the end of the hearing.
The
Supreme Court has held that it is improper for any court to either
stray from the issues arising from the pleadings or to pick up an
issue for the parties and determine the dispute on the basis of the
issue so created by it.
This
is the standard that the Supreme Court, as the apex court in all
common law matters, has since time immemorial, set and enforced upon
the procedures and decisions of lower courts. It is therefore the
standard against which its own procedures and decisions must in turn
be measured.
But
this is not the end of the inquiry.
I
must now turn to analyse whether the applicant has set out adequately
and appropriately the fundamental rights and freedoms that he alleges
were violated by the judgment of the Supreme Court.
I
start with the allegation that the failure by the court a
quo
to determine the issues that were before it infringed the applicant's
right to equal protection and benefit of the law as guaranteed by
section 56(1) of the Constitution of Zimbabwe.
After
hearing the parties at the first hearing, this Court directed the
parties to make further submissions on the content of the fundamental
right that is guaranteed under section 56(1) of the Constitution.
This
was so because, whilst in his papers filed of record the applicant
had alleged that his rights as protected by this section had been
violated, in oral argument, he appeared to be relying entirely on the
right to due process as guaranteed by section 18(1) of the repealed
Constitution.
We
are indebted to counsel for the additional submissions and oral
arguments.
The
applicant's position is not complicated. If granted leave, he
intends to assert his rights to the protection and benefit of the
law. In this regard, he relies fully on the content of this right as
it was provided for under section 18(1) of the repealed Constitution
and as subsequently interpreted by this Court. This notwithstanding
that he cites section 56(1) of the Constitution.
Section
18 of the repealed Constitution provided that:
“18
Provisions to secure protection of law
(1)
Subject to the provisions of this Constitution, every person is
entitled to the protection of the law.”
The
content of the right as provided for by the section was interpreted
to be nothing more than the right to demand and be protected by the
due process of the law. It thus protected every person against
arbitrary decisions that do not follow the laid down precepts of the
law be they substantive or adjectival. (See
Martin v Attorney-General 1993 (1) ZLR 153 (SC); Mawarire v R G
Mugabe and Others CCZ 1/13 and Matiashe v Mahwe N.O. and Another CCZ
12/14).
With
the adoption of the Constitution, the right to the protection of the
law was re-enacted and provided for in section 56.
It
is common cause that section 56(1) is differently worded from section
18 of the repealed Constitution.
The
applicant readily accepts the difference in the wording of the two
sections. He however argues that, notwithstanding this change, his
right to the protection of the law, as espoused in the case
authorities decided prior to 2013, still obtains and must find not
only expression but also gratification under section 56(1) of the
Constitution.
Section
56(1) of the Constitution provides as follows:
“56
Equality and non-discrimination
(1)
All persons are equal before the law and have the right to equal
protection and benefit of the law.”
The
right to the protection and benefit of the law as guaranteed by
section 56(1) has been construed narrowly. (See
Nkomo v Minister of Local Government, Rural and Urban Development and
Others 2016 (1) ZRL 113 (SC) and Marx Mupungu v Minister of Justice,
Legal & Parliamentary Affairs and Others CCZ 7/21.)
Thus,
instead of the right to the protection and benefit of the law being a
right to due process simpliciter,
the right guaranteed by section 56(1) has been modified or
discoloured, as it were, by the insertion of the word “equal” in
the provision immediately preceding the right.
An
applicant seeking to rely on the right must not only allege and prove
non-observance of due process but now bears the additional onus of
alleging and ultimately showing that other persons similarly
positioned are afforded the protection and benefit of the law that he
or she craves.
In
Nkomo
v Minister of Local Government, Rural and Urban Development and
Others, supra,
it was held that section 56(1) provides equality to all persons
before the law and the right to receive the same protection and
benefit afforded by the law to “persons
in a similar position”.
(The
emphasis is mine).
Similarly
in Marx
Mupungu v Minister of Justice, Legal & Parliamentary Affairs and
Others, (supra)
it
was observed in part that:
“..
What this provision means is that all persons in a similar position
must be afforded equality before the law and the
same protection and benefit of the law.”
(Again
the emphasis is mine).
I
do not read the above cases as having changed the core content of the
right to the protection of the law as upheld by this Court prior to
2013. I read the above cases as qualifying that right or as Patel JCC
put it in Marx
Mupungu v Minister of Justice, Legal & Parliamentary Affairs and
Others, (supra)
as simply “narrowing” the scope of the enjoyment of the right.
Put
differently, I do not read the judgments of this Court as requiring
more than a specific averment and a demonstration by the facts
alleged in the founding papers that similarly placed litigants were
afforded the right that the applicant wishes to assert.
Viewed
in this sense, the averment will, in the converse, mean that denying
the applicant the right in such circumstances will amount to denying
him or her equal treatment before the law. This will obviously
constitute a violation of the right embodied in the section.
I
am fortified in making this finding from the words of ZIYAMBI JCC in
Nkomo
v Minister of Local Government, Rural and Urban Development and
Others, supra,
at
119B where her Ladyship cites with approval the dicta
in Van
der Walt v Metcash Trading Ltd
2002 (4) SA 317 (CC) to the effect that the South African equivalent
of our section 56(1) means that all persons in a similar position
must be afforded the same right to access the courts and to the same
fair and just procedures with regards to such access.
In
finding against the applicant in that matter, her Ladyship continued:
“Clearly
the guarantee provided by section 56(1) is that of equality under the
law. The Applicant has made no allegation of unequal treatment or
differentiation. He has not shown that he was denied protection of
the law while others in his position have been afforded such
protection. He has presented the Court with no evidence that he has
been denied equal protection and benefit of the law…. In short, the
applicant has come nowhere near establishing that his right enshrined
in section 56(1) of the Constitution has been infringed. He is
therefore not entitled to a remedy.”
I
must in turn find against the applicant.
In
making this finding, I am aware that the requirement to specifically
plead and ultimately prove that other persons similarly placed were
protected by and benefited from the law might appear superfluous and
pedantic, especially in circumstances such as in casu.
However,
the
position of the law is that it is necessary that in all instances
where the right is invoked, the equality before the law and the equal
treatment under the law that the section envisages is specifically
pleaded and ultimately proved even if, in some instances, the proof
thereof will be common cause or easy to furnish.
I
further make the observation that requiring the specific averment
that other persons were afforded the protection and benefit of the
law that the applicant seeks, in circumstances such as in the present
application, does not amount to putting form over substance.
It
is not superfluous to plead that other litigants in the Supreme Court
have their issues determined on appeal. Such pleading simply serves
to give effect and import to the word “equal” that was inserted
into the wording re-enacting the right.
For
completeness, I note that the applicant did not even mount the
possible, though not tenable argument that complying with the
procedural requirements of pleading inequality of treatment in the
circumstances of this matter was implied and therefore unnecessary.
Instead,
he maintained that the position of this Court holding that pleading
unequal treatment or differentiation whenever this right is invoked
is a requirement was erroneous and ought to be set aside by a full
bench of the Court.
Put
differently, he submitted that this Court ought to reverse itself.
In
pressing his argument in this regard, the applicant made no attempt
to distinguish the facts of this matter from the cases cited above
that give a narrow interpretation of the right guaranteed by section
56(1).
He
did not seek to sidestep the ratio
decidendi
of
those cases but simply attacked such as being erroneous.
He
thus did not lay any possible basis upon which this Court can
contemplate revisiting the position that it has taken in interpreting
the provisions of section 56(1) of the Constitution.
He
cannot be helped.
It
is common cause that the applicant did not plead his case with the
requisite particularity that would have brought him within the ambit
of the alleged breach of the fundamental right protected under
section 56(1) of the Constitution.
Therein
lies the fatal defect that determines this application against him on
this allegation.
On
the basis of the above, the intended application by the applicant
will not succeed in establishing that the decision of the Supreme
Court breached his right to the equal protection and benefit of the
law.
Enjoying
no prospects of success in this regard, it cannot be in the interests
of justice that the leave be granted on this score.
I
now turn to the second allegation that the decision of the Supreme
Court allegedly infringed the applicant's right to a fair hearing
before an independent and impartial court.
Apart
from making the allegation, the applicant did not proceed to lay any
foundation in his founding papers or in oral argument for a finding
that the applicant was not afforded a fair hearing.
The
applicant exerted all his energies and arguments towards establishing
the error made by the Supreme Court and the alleged infringement of
his right to the equal protection and benefit of the law and paid
scant attention to the alleged breach of his right to a fair trial.
I
find no basis on the facts of the matter for holding that the
applicant was not afforded a fair trial. I do not so hold.
Disposition
The
application cannot succeed and must be dismissed. Regarding costs,
there are no reasons justifying a departure from the ordinary
position of this Court of not awarding costs against any of the
parties.
In
the result, the following order is made:
The
application is dismissed with no order as to costs.
GARWE
JCC: I
agree
HLATSHAWAYO
JCC: I
agree
Nyahuma
Law Chambers,
applicant's
legal practitioners
Dube-Banda
Nzarayapenga,
1st
respondent's legal practitioners
Sawyer
& Mkushi,
2nd
respondent's legal practitioners
Hogwe
Nyengedza Attorneys,
4th
respondent's legal practitioners
