This is an application for review brought in terms of section 27 of the High Court Act [Chapter 7:06].
The brief facts surrounding this application are as follows:
On 22 November 2013, the Administrative Court granted leave to the applicant to file an appeal out of time against the second respondent's decision granting a permit to the first respondent to establish a cellular base at a place in Mt Pleasant, Harare.
On 4 December 2013, the first respondent made a chamber application to the Administrative Court for leave to appeal to the Supreme Court against the interlocutory order. The chamber application was served on the applicant on 5 December 2013. The court dealt with and granted the application in chambers on 18 December 2013 before the 10-day period within which the applicant was required to file a response had elapsed.
A default order was in effect granted.
The next day, the applicant filed its notice of opposition. The court, on being advised that it had granted the order in error, accepted its error and requested the parties to appear before it in chambers to map the way forward.
The meeting did not produce any fruitful results.
The first respondent refused to abandon the order granted in its favour resulting in the court ruling that it was functus officio.
The first respondent (hereinafter referred to as the respondent) has proceeded to erect the base station which is the subject of litigation between the parties. An appeal, premised on the leave to appeal granted to the respondent in default by the Administrative Court on 18 December 2013, has already been filed in the Supreme Court under SC535\13 and is pending.
The applicant seeks a review of the proceedings of the Administrative Court under T16/13 granting leave to appeal to the respondent.
The parties are at variance concerning this court's jurisdiction to review proceedings of the Administrative Court.
The applicant maintained that the High Court, being a court of original and inherent jurisdiction, has the power to review proceedings of all inferior courts. The applicant further submitted that the Administrative Court is a court inferior to the High Court and that this fact clothes the High Court with jurisdiction in terms of sections 26 and 27 of the High Court Act [Chapter 7:06] (hereinafter referred to as the High Court Act) to review proceedings of that court.
On the merits of the application for review, the applicant contended, that, the Administrative Court erred when it failed to afford the applicant an opportunity to oppose the application before it. The applicant maintained that the Administrative Court, in determining and granting the application without affording the applicant an opportunity to oppose the application, committed a gross irregularity which is subject to review by this court.
The first respondent defends the application.
It contends, that, the High Court does not have the power to exercise review jurisdiction over proceedings and decisions of the Administrative Court, let alone set aside a decision of the court. The first respondent submitted that the Administrative Court is a court of record whose proceedings are subordinate only to the Supreme Court.
The respondent did not suggest that the High Court and the Administrative Court are at par.
The first respondent urged this court not to grant the order sought as such order will render nugatory proceedings pending in the Supreme Court and have the effect of expunging leave granted by the Administrative Court thereby rendering the appeal already filed to have been filed without leave of court.
Counsel for the respondent submitted that the question of whether the appeal is properly before the court is an issue that the Supreme Court may be seized with if brought up by the parties and if it is their position that the appeal is premature.
The respondent insisted that this point should be taken in the Supreme Court, and argued that the applicant has failed to lay a basis for the court to depart from the norm and intervene in proceedings held before a higher court.
At the hearing of this matter, I queried the wisdom of bringing the dispute over the propriety of the order granted in default to this court as a review.
An alternative procedure was available to resolve the dispute between the parties.
Both parties agreed that the applicant had the simpler option of placing before the Administrative Court an application for rescission of judgment in terms of Order 49 Rule 449 of the High Court Rules, 1971.
The Rule provides for correction, variation, and rescission of judgments or orders erroneously granted in the absence of any party affected thereby.
The Administrative Court (Miscellaneous Appeals) Rules 1980, do not make provision for rescission of a judgment or order - particularly where there is an allegation that the order or judgement was erroneously made or granted.
In any case, where the conduct of proceedings is not covered by the Administrative Court rules, the practice embraced in that court is to resort to application of the High Court Rules. This course of action is made possible by the provisions of section 13(3)(a) of the Administrative Court Act [Chapter 7:01]. The section reads as follows;
“13(3) In any proceedings not covered by rules in terms of subsection (1) or any other enactment —
(a) The rules relating to practice and procedure in the High Court shall, where appropriate, apply;”
Invoking Rule 449 could have saved the day here.
Being seized with the application, I decided, in my discretion, to investigate the contentious issue regarding the jurisdiction of the High Court to review proceedings of the Administrative Court and further determine the arguments advanced for and against review of the proceedings by this court in the face of the appeal subsequently filed in the Supreme Court and premised on the order challenged.
The parties requested me to resolve the following issues:
1. Whether this court has the competency to review and set aside proceedings of the Administrative Court.
2. Whether the pendency of the appeal in SC535\13 is fatal to the present application.
THE HIGH COURT
Both the High Court and the Administrative Court are provided for in the Constitution of the country. The Lancaster House Constitution of 1979, which came into effect in 1980, made provision for the courts in section 79. It read as follows:
“79 Judicial Authority
(1) The judicial authority of Zimbabwe shall vest in —
(a) The Supreme Court; and (b) the High Court; and (c) such other courts subordinate to the Supreme Court and the High Court as may be established by or under an Act of Parliament.”
The High Court and Supreme Courts were specifically and directly provided for in the old Constitution. Other subordinate courts could be established under Acts of Parliament and were not named. Such other courts would be subordinate to the High Court and Supreme Court.
The effect of this provision was to render all other courts established by Acts of Parliament courts subordinate to the Supreme Court and High Court.
Subsequent to the coming into effect of the Constitution, the Administrative Court was established through an enabling statute.
The current Constitution makes provision for the High Court in section 170. The section reads as follows:
“170 High Court
The High Court is a superior court of record and consists of -
(a) The Chief Justice, the Deputy Chief Justice and the judge President of the High Court; and
(b) Such other judges of the High Court as may be appointed from time to time.”
The jurisdiction of the court is outlined in section 171 of the Constitution. The section reads as follows;
“171 Jurisdiction of High Court
(1) The High Court —
(a) Has original jurisdiction over all civil and criminal matters throughout Zimbabwe;
(b) Has jurisdiction to supervise magistrate's courts and other subordinate courts and to review their decisions;
(c) May decide constitutional matters except those that only the Constitutional Court may decide; and…,.”
The High Court has original jurisdiction over all people in Zimbabwe.
ORIGINAL AND INHERENT JURISDICTION OF THE HIGH COURT
The High Court is a superior court of record and has original jurisdiction in all civil and criminal matters. It has unlimited original jurisdiction which it exercises unless its jurisdiction is specifically ousted. It has concurrent jurisdiction and may exercise its jurisdiction over matters which other courts have jurisdiction.
It is given the power to supervise the Magistrate's Court and other subordinate courts and to review their decisions.
It may also decide constitutional matters except those that only the Constitutional Court may decide.
The High Court also has inherent power, conferred upon it by section 176 of the Constitution, to protect and regulate its own process and to develop the common law or the customary law.
Section 176 of the Constitution provides as follows;
“The Constitutional Court, the Supreme Court, and the High Court have inherent power to protect and regulate their own process and to develop the common law or the customary law, taking into account the interests of justice and the provisions of this Constitution.”
The concept of inherent jurisdiction has its roots in the English common law, that, a superior court has the inherent jurisdiction to hear any matter that comes before it unless that authority is expressly excluded or limited by some statute or rule of law.
The concept of inherent jurisdiction is described by JEROLD TAITZ, in, The Inherent Jurisdiction of the Supreme Court, Cape Town, South Africa; Juta Publishers, 1985, as follows;
“The inherent jurisdiction of the Supreme Court may be described as the unwritten power without which the court is unable to function with justice and good reason. As will be observed below, such powers are enjoyed by the court by virtue of its very nature as a superior court modelled on the lines of an English superior court…,.”
In HALSBURY's Laws of England, 4ed, London, Butterworth's, inherent power is defined as follows;
“In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine, and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon, as necessary, whenever it is just or equitable to do so, in particular to ensure the observance of due process of law, to prevent vexation or oppression, to do justice between the parties, and to secure a fair trial between them,”
In Martin Sibanda and Anor v Benson Chinemhute and Anor HH131-04 MAKARAU J gives a graphic distinction between a court of inherent jurisdiction and one without and remarks thus;
“I have always visualised the difference between a court of inherent jurisdiction and one without as two buildings open to the citizenry. One has all its doors and windows open to all and for all reasons (and in all seasons), apart from those expressly and clearly forbidden entry by statute.
Where a point of entry is hitherto non-existent for a member of the public, in the form of procedure, one is inherently created in the interests of justice.
This is the court of inherent jurisdiction.
The sentry manning the building is less stern and less demanding than his counterpart at the gates of the other building. This other building, representing the court without inherent powers, is generally closed up apart from a few windows to allow access to those expressly defined in the statute creating the court, on certain terms and for certain specified purposes.
Where the statute does not create a point of entry, the court cannot open one for anyone.
In this country, that distinction boils down to classification of courts on the basis of superior courts and inferior courts.”
These sentiments succinctly summarise the concept of inherent jurisdiction.
The concept of inherent jurisdiction has its foundation in common law and is reserved for the highest courts in the land. In this country, only the superior courts, thus, the Constitutional Court, the Supreme Court, and the High Court are courts of superior jurisdiction.
The power of the High Court to review and supervise the decisions of subordinate and inferior courts enshrined in the Constitution and codified in the enabling act derives from its inherent jurisdiction or power.
Inherent power is unwritten power which superior courts are endowed with.
Inherent power gives the court wide ranging and all embracing powers to deal with any matter that may be placed before them. This means that a court of inherent jurisdiction has default powers which it can exercise in the absence of express power and can deal with all areas of the law and all procedural matters involving the administration of justice.
The mischief behind the concept is to ensure that justice is done between the parties by ensuring that due process of law is observed, proceedings are fair, and are conducted in accordance with real and substantial justice.
It is an issue of the interests of justice and access to justice rather than some perceived wrestling match for power and supremacy.
Such jurisdiction extends to all matters - including those over which other courts have jurisdiction.
If a litigant chooses to go to the High Court, the court can assume jurisdiction over that person. It can hear any matter that comes before it. It can also review all proceedings of all inferior courts.
The High Court will refrain from exercising its inherent jurisdiction only where its jurisdiction is specifically excluded or ousted by a statute or other law.
Because the High Court has inherent jurisdiction, its jurisdiction cannot be excluded by implication.
An example of express exclusion of the jurisdiction of the High Court is found in section 89(6) of the Labour Court Act [Chapter 28:01] which expressly excludes the jurisdiction of any other court in labour matters in the first instance.
HIGH COURT'S POWER OF REVIEW
The High Court is given power to review proceedings and decisions of inferior courts by sections 26 and 27 of the High Court Act. Section 26 of the High Court Act reads as follows;
“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.”
This section empowers the High Court to review all proceedings and decisions of all inferior courts of justice, tribunals, and administrative authorities within Zimbabwe.
There is no ambiguity in this section.
The intention of the legislature, in giving the court powers to review proceedings and decisions of all inferior courts of justice, is clear from the language of the statute. That power, as previously stated, derives from the court's inherent jurisdiction.
In any case, where it has been shown that a court is an inferior court, the jurisdiction of the High Court over it is not limited. It must follow that the High Court has review jurisdiction over it. Decisions of inferior courts are reviewable by the High Court except where the law provides otherwise thereby ousting its jurisdiction.
Grounds upon which the court may review decisions and proceedings of inferior courts are laid down in section 27 of the High Court Act and these will be dealt with at a later stage.
INFERIOR AND SUBORDINATE COURTS
The Constitution, in section 171, gives the High Court the jurisdiction to supervise and review decisions of the Magistrate's courts and other subordinate courts.
Section 26 and 27 of the High Court Act gives the court power to review decisions of inferior courts of justice, tribunals, and administrative authorities.
The ordinary meaning of the word 'subordinate' denotes something that is secondary, lesser, lower, minor, or inferior.
It appears to me that reference a subordinate court refers to an inferior court and that the two references refer to a court of a similar status. Reference to one includes the same. The two descriptions of the courts mean the same - it is a distinction without a difference.
When the Constitution makes reference to a subordinate court, it includes all inferior courts, tribunals, and administrative authorities.
The purpose of the legislature, in making proceedings of subordinate courts reviewable by the High Court, was purposeful and was to have all proceedings of subordinate courts subject to supervision of the High Court in the interest of the due administration of justice.
It is not necessary to split hairs over a non-existent distinction between an inferior court and subordinate court.
I will proceed and determine what an inferior court is, as requested, and resolve whether or not the Administrative Court is a court inferior to the High Court.
The High Court and Supreme Court Acts do not define what an inferior court is. A legal dictionary, by JOHN BOUVIER, 1856, defines an 'inferior court' as a court of limited jurisdiction. In Ex Parte Kearny, (1880) 55 Cal 212 the court remarked that:
“Inferior courts are those whose jurisdiction is limited and special and whose proceedings are not according to the course of the common law.”
See also Smith v Andrews 6 Cal 652 for the same proposition.
HERBSTEIN and Van WINSEN in The Civil Practice of the South African High Courts, 5ed…, says of inferior courts;
“…, whereas inferior courts may do nothing that the law does not permit, superior courts may do anything the law does not forbid.”
An inferior court is a court of limited and specified jurisdiction. It is a special court whose jurisdiction is specified and does not apply the common law. It is not a superior court.
What governs what an inferior court is the nature of the jurisdiction that it exercises and nothing more.
All courts that do not apply the common law do not have original and inherent jurisdiction, exercise limited and specified jurisdiction, and are inferior courts.
The superior courts of this country are the Constitutional Court, the High Court, and the Supreme Court. All other courts are inferior and\or subordinate to these courts. All courts which are not superior courts are inferior courts.
The High Court, being a superior court of original and inherent jurisdiction, is empowered to review decisions of inferior courts. In the absence of any law that ousts its jurisdiction, the High Court is entitled to exercise its supervisory and review power over an inferior court.
THE ADMINISTRATIVE COURT
It has already been highlighted that the Administrative Court was created by an Act of Parliament. This was in compliance with the provisions of section 79 of the old Constitution. The court was created by Act No.39 of 1979. The old Constitution did not mention this court by name.
The position with the court was that it was a specialist court dealing with review of decisions of administrative and statutory bodies and dealt only with matters of an administrative nature.
The Administrative Court Act, as created under the old Constitution, was placed in the category of subordinate courts and was subordinate to the High Court and Supreme Court and was therefore an inferior court.
Its decisions and proceedings were, in terms of section 26 and 27 of the High Court Act, reviewable by the High Court.
The Administrative Court is now specifically provided for in the new Constitution. Section 173 of the Constitution reads as follows;
“173 Administrative Court
(1) The Administrative Court is a court of record and consists of —
(a) A Judge President; and
(b) Such other judges of the Administrative Court as may be appointed from time to time.
(2) The Administrative Court has such jurisdiction over administrative matters as may be conferred upon it by an Act of Parliament.
(3) An Act of Parliament may provide for the exercise of jurisdiction by the Administrative Court and for that purpose may confer the power to make rules.”
The Administrative Court has jurisdiction over administrative matters only. Its jurisdiction remains the same as that under the old Constitution and may be provided for by an Act of Parliament.
The Administrative Court is now a court of record.
The Constitution does not specifically list it as one of the courts that are subordinate to the High Court.
A notable achievement is that the court is now specifically provided for in the new Constitution by special reference to it. Its jurisdiction as well as its composition is specified. However, nothing has been gained with regards the jurisdiction of the court.
Faced with this information, the court will now resolve whether the Administrative Court is an inferior court whose proceedings are reviewable by the High Court.
The Constitution does not define what an inferior court is nor does it describe the Administrative Court as an inferior court.
A breakdown of the provisions that establish the courts and govern the powers and jurisdiction conferred upon each court reveals the status of each court. In order to discern whether this court is an inferior court one has to scrutinise its jurisdiction.
The Administrative Court is a specialist court with limited and specified jurisdiction. It deals with administrative matters only. Specifics of its jurisdiction are outlined by the Administrative Court Act and enabling statutes that confer jurisdiction on the court. It is generally a statutory court and its jurisdiction is limited to the four corners of enabling statutes. It mainly deals with applications, appeals, and reviews emanating from decisions of administrative and statutory bodies.
The Administrative Court does not have original and inherent jurisdiction and does not apply the common law. The Constitution does not define it as a superior court. There is no provision in the Administrative Court Act or its Rules that ouster the review jurisdiction of this court in administrative matters.
A presumption exists, when interpreting statutes, against the ouster of this court's jurisdiction unless it is specifically ousted by statute: see Martin Sibanda and Anor v Benson Chinemhute and Anor HH131-04 where the court held that this court guards jealously its inherent jurisdiction and that the rationale is to ensure access to justice.
Similar sentiments were expressed in Chawora v RBZ HH59-06.
The High Court can do anything that it is not prohibited by law to do whilst the Administrative Court can only do that which it is empowered by the law to do.
Where the jurisdiction of the High Court is not specifically ousted, the court may, in terms of its inherent jurisdiction, found jurisdiction in order to ensure access to justice to litigants.
This narrative leaves no doubt in my mind that the Administrative Court falls squarely within the four corners of an inferior court, and, consequently, its decisions and proceedings are subject to review by the High Court in terms of section 26 of the High Court Act.
COURT OF RECORD
The respondent submitted, that, the Administrative Court is a court of record whose proceedings are subordinate only to the Supreme Court.
No authorities were cited in support of that proposal.
The word 'record' connotes a permanent inscription of the proceedings. That is the ordinary grammatical meaning.
Only the High Court and Supreme Court were described as superior courts of record in the old Constitution. The current Constitution now describes the Administrative and Labour Courts as courts of record.
This, in my view, does not reveal that the legislature intended that the status of the court be uplifted to that of a superior court.
The Constitutional Court, Supreme Court, and High Court remain the only superior courts of record and superior courts.
There is nothing magical about a court being a court of record.
The fact that it is a court of record does not make it a superior court. Moreover, the Administrative Court is not described as a superior court of record.
What is clear is that the Administrative Court is not at the same level as the High Court which is a superior court of record. It remains an inferior court to the High Court, placing its proceedings within the ambit of section 26 of the High Court Act.
Section 174(c) of the Constitution makes provision for the establishment of other courts and tribunals subordinate to the High Court.
The Administrative Court is not a superior court, but an inferior court subordinate to the High Court. It is not at the same level as the High Court.
The use of the word 'other' in the provision seems to me to imply that the legislature intended to leave room for the creation of other subordinate courts to be established by Acts of Parliament. They were not closing the door to the creation of other subordinate courts. The provision does not exclude the Administrative Court from the category of inferior courts. The Administrative Court remains an inferior court on the basis of its limited jurisdiction. The reference to it being a court of record does not make it a superior court.
In the ordinary run of things, this would be an appropriate case for this court's exercise of its review powers.
