NDOU J: The
application is one for review. The
applicant was charged with contravening section 3(2) as read with section 3(3)
of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] in that he
remained in occupation of gazetted land without the authority of the
state. When the applicant appeared
before the magistrate (i.e. the 1st respondent) he made an
application for his case to be referred to the Supreme Court in terms of
section 24(2) of the Constitution of Zimbabwe (“the Constitution”). The magistrate court dismissed the
application on the ground that it was frivolous and vexatious. The dismissal is the source of this
application for review. This application
was served upon the 2nd respondent by delivering a copy of the
application to an officer of the 2nd respondent at the 2nd
respondent's office in Bulawayo.
In his opposing affidavit, the 2nd
respondent raised two points in limine. The first point in limine was that he was not properly served with
application. The second point was that
the applicant should have made the application to the Supreme Court and not to
the High Court.
I propose to deal with these points
in turn.
Objection in limine as to jurisdiction
The gravamen of the objection is
that this court has no jurisdiction to review a decision made by a magistrate
court pursuant to the provisions of section 24(2) of the Constitution. It is trite that no written law has yet been
made in terms of section 24(9) of the Constitution which provides –
“A written law may make provision
with respect to the practice and procedure –
(a)
Of the Supreme Court in relation to the jurisdiction and powers conferred upon it by or under this
section; and
(b)
Of
subordinate courts in relation to references to the Supreme Court under
subsection (2)”. (Emphasis added)
As no written law has yet been made in terms of section 24(9)
of the Constitution, the Supreme Court itself has indicated the procedures to
be followed in relation to matters which are raised under the provisions of
section 24, supra – Martin v Attorney General & Anor 1993(1) ZLR
153 (S) and Tsvangirai v Mugabe & Anor SC-84-05. These cases make it amply clear that the
procedure to be followed in relation to applications brought in terms of
section 24 supra, of the Constitution
is the procedure as announced by the Supreme Court itself in the absence of a
written law prescribing such procedure.
The highlighted provisions of
section 24(2), supra and the
provisions of section 24(4) specifically mention the Supreme Court. There is no
mention of such section 24, references being made to the High Court. This reference to the Supreme Court alone in
section 24 is a deliberate limitation of the inherent jurisdiction of the High
Court – S v Mbire 1997(1) ZLR 579 (S) at 581B; Mandirwhe v Minister of State
1981(1) SA 759 (ZA) at 764; Catholic Commission for Justice and Peace in Zimbabwe
v Attorney General & Ors 1993 (1)
ZLR 242 (S) at 250 and Movement for
Democratic Change & Anor v Chinamasa
& Anor 2001(1) ZLR 69(S) at 76.
This issue was discussed extensively
in a judgment of this court in Nyamandlovu
Farmers Assoc v Min of Lands &
Anor 2003(1) ZLR 185(H) at 190F to 194B.
The applicant should, in such a constitutional matter under section 24
approach the Supreme Court directly for a speedy redress. A section 24 order is a distinct legal
redress established by the Constitution itself, to have important
constitutional issues decided directly by the final court in the land, without
protracted litigation. The Supreme Court
is the only court empowered to deal with this kind of application and has
indeed done so in similar circumstances – William
& Anor v Msipa & Ors
SC-22-10 at page 17 of the cyclostyled judgment; Martin v Attorney General,
supra and Beattie Farms (Pvt) Ltd
a.k.a Chigwell Estate v Mugova N.O.
& Anor SC-32-09. Section 24 (2),
supra, is intended to give the magistrate power in cases of this kind, to
protect the Supreme Court from frivolous and vexatious litigation. A party who is not satisfied with the
determination should approach the Supreme Court – Martin v Attorney General,
supra. The issue in this case is
whether the magistrate “paid up service to the interpretation of the words
“frivolous or vexatious” in her interpretation of section 24(2). The prayer sought by the applicant is in the
following terms: “It is sought that 1st respondent's decision of the
29th of September 2009 be set aside and that the case be referred to
the Supreme Court.” This is a case which
should clearly have gone straight to the Supreme Court. The Supreme Court has dealt with such matters
on urgent basis if the circumstances so demand.
The Supreme Court has granted a stay of proceedings where a case has
been made for such relief – Mukoko v Commissioner General SC-3-09 and Williams & Anor v Msipa, supra. In
casu, it is not clear why the applicant chose this long and winding route
when the Constitution affords him, in section 24, supra, the opportunity to obtain expeditious redress. When this objection was raised, the applicant
should, with respect, have withdrawn this application and approached the
Supreme Court directly. From the
foregoing the objection in limine has
merit and should be upheld. On this
point alone the application is dismissed with costs.
Objection in limine as to the method of service
The 2nd respondent filed
opposing papers, presumably “under protest” notwithstanding his challenge to
the method of service on him of the application. I have just upheld the other objection raised
by the 2nd respondent. All
these factors render this objection academic and I do not see any need to deal
with it.
Accordingly,
as alluded to above, the application is dismissed with costs.
Dzimba, Jaravaza & Associates,
c/o Messrs Coghlan & Welsh, applicant's legal practitioners
Civil Division, Attorney General's Office, 2nd
respondent's legal practitioners
