Cause of Action re: Mutually Exclusive Composite, Consolidated or Conflated Causes of Action and Alternative Pleas

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CC03-19 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS ZIMBABWE and CAIRNS FOODS LTD
Ruled By: MALABA CJ, GARWE JCC and MAKARAU JCC

This is a chamber application for leave to appeal, condonation for late filing of the application for leave to appeal, and exemption from security for the respondents costs.

The applicant was formerly employed by the third respondent. Sometime in 2004 he obtained judgment in the Labour Court, awarding him damages for unlawful termination of employment. The quantum of damages that he was granted came to ZW$26,076,252= after quantification by the Labour Court.

However, before the third respondent could make any payment, it was placed under judicial management.

The first respondent, who works for the second respondent, was appointed the Judicial Manager.

The applicant then filed, with the Master of the High Court, a claim for his debt to be placed on the list of the third respondent's other creditors. The claim was provisionally accepted, but, later revoked at the instance of the first respondent. This was because, while the applicant's debt was denominated in Zimbabwe dollars, he had lodged his claim in United States dollars amounting to USD3,057,199= without an order of court converting his Zimbabwe dollars claim to United States dollars.

It seems that he had done the conversion of the amount himself.

The applicant then approached the High Court seeking to be reinstated on the list of creditors. The specific order that he sought read as follows:

“It is ordered that:

1. The applicant's claim be and is hereby reinstated to the creditors of the third respondent.

2. Within 48 hours of the issuance of this order, the fourth respondent avails to the applicant the payment schedule for the third respondent's judicial management creditors.

3. On a jointly and severally basis (sic) and within 21 days of the issuance of this order, the first, second and third respondents pay the applicant:

(a) The full amount of his claim in accordance with the schedule of payment of creditors of the same class.

(b) Interest at the prescribed rate on all overdue payments.

(c) The first, second and third respondents pay costs of suit.”

A point in limine was raised by the first respondent, on behalf of the second respondent, to the effect, that, there was no legal basis for the applicant to sue the latter, as this was done solely for the reason that the first respondent worked for the second respondent.

The High Court upheld the point in limine and also dismissed the whole application on the merits for the following reasons:

(a) At the time the applicant filed the application before the High Court, the third respondent was no longer under judicial management. The relief he sought could no longer bind the first respondent because he had ceased being the third respondent's Judicial Manager when it was removed from judicial management; and

(b) The claim lodged by the applicant before the Master of the High Court was an amount which had not been properly converted at law. The court could not direct the Master to reinstate the claim.

Aggrieved by the High Court's decision, the applicant approached the Supreme Court, on appeal, seeking the following relief:

“It is prayed that:

1. The High Court judgment be set aside.

2. Leave be granted for registration with the High Court in Harare, for purposes of enforcement, my claim of USD3,057,199 against the third respondent which was proved and admitted in the creditors meeting held on 13 February 2013 pursuant to the company's judicial management and has never been set aside or varied.

3. Interest at the prescribed rate be paid on the claim amount from 3 November 2015, the day following the date of cancellation of the final judicial management order, to the date of final settlement.

4. The respondents pay the whole litigation costs for this matter.”

In the heads of argument filed in the court a quo, the respondents raised three points in limine in regard to the relief sought:

(i) Firstly, they contended, that, the applicant failed to pray for the success of the appeal, hence the relief sought was incompetent.

(ii) Secondly, they argued, that, the relief which the applicant was seeking on appeal before the Supreme Court was different from that which he sought in the High Court.

(iii) Thirdly, the respondents argued, that, the relief sought was fatally defective, in that the applicant sought an order for costs against all the respondents but did not seek any substantive relief against the first and second respondents.

In response to the points in limine, the applicant, in his heads of argument, argued, that, there is no provision in the Rules of the Supreme Court 1964 which requires a party to expressly state whether or not the appeal should succeed, as the Judges can themselves simply state that the appeal succeeds or not. He explained that the intention that the appeal succeeds is apparent from the very act of appealing.

With regard to the allegation that he was seeking what he did not seek in the High Court, the applicant's position was that only the method of enforcement had changed but he still sought the same relief.

On the point that he was not seeking any substantive relief against the first two respondents except for costs, the applicant argued that it is clear from his papers that the first two respondents were liable to him under delict for the third respondent's failure to pay his debt.

The Supreme Court found, that, there was merit in the respondents points in limine, in particular that the applicant's Notice of Appeal did not satisfy the provisions of Rule 29 of the Rules of the Supreme Court 1964.

The appeal was dismissed and not struck off the roll.

In explaining its decision, in Edward Madyavanhu v Reggie Francis Saruchera and Two Ors SC75-17, the court stated…, as follows:

“However, in this case, the court found that the appeal was not only incurably defective but wrong and bad in law. The appeal could therefore not properly be struck off the roll because the appellant had no avenue, legally or procedurally, to follow in case he was inclined to bring the same appeal before this Court.

It is emphasised in this respect, that, the appellant could not have secured the relief that he sought in the court below from the first respondent, for the simple reason that he had ceased to be the Judicial Manager of the third respondent, which, in turn, had ceased to be a company under judicial management. There was, therefore, no longer a list on which the appellant's claim could be included.

In addition to this, the second respondent was improperly sued from the beginning because it was not an interested party in the dispute, it being the first respondent's employer.”

Aggrieved by the decision, the applicant filed an application in the Constitutional Court (“the Court”). He referred to the application as a “Chamber application for condonation for late filing of the application for leave to appeal and exemption on security for the respondents costs.”

A chamber application for leave to appeal was also included in the consolidated application.

It is not indicated in terms of which provision the applicant made the three applications....,.

The applicant has filed an application for leave to appeal, condonation for late filing of the application for leave to appeal, and exemption from security for the respondents costs.

The application is not provided for in the Constitutional Court Rules.

The subject matters and the reliefs sought are dealt with separately by the Constitutional Court Rules:

(i) An application for leave to appeal is provided for in Rule 32;
(ii) An application for condonation and extension of time within which to appeal is provided for in Rule 35; and
(iii) Security for costs is provided for in Rule 42 of the Constitutional Court Rules.

CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

The jurisdiction of a court and access to that jurisdiction are two distinct legal precepts. The two are complementary but are not synonymous. They are not to be conflated. They have their foundations in two different laws.The jurisdiction of a court is to be found in substantive law while access ...

CC10-23 : LAW SOCIETY OF ZIMBABWE vs PARLIAMENT OF ZIMBABWE and PRESIDENT OF THE SENATE and SPEAKER OF THE NATIONAL ASSEMBLY and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY-GENERAL N.O.
Ruled By: GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, UCHENA AJCC and MAKONI AJCC

The applicant approaches this Court under section 167(2)(d) as read with section 85(1) of the Constitution of Zimbabwe.It seeks an order declaring that the Constitution of Zimbabwe Amendment No.1 Bill, alternatively, the Constitution of Zimbabwe Amendment No.1 Act, and the Constitution of Zimbabwe Amendment No.2 Act are invalid.Ultimately, the applicant ...

The applicant approaches this Court under section 167(2)(d) as read with section 85(1) of the Constitution of Zimbabwe.

It seeks an order declaring that the Constitution of Zimbabwe Amendment No.1 Bill, alternatively, the Constitution of Zimbabwe Amendment No.1 Act, and the Constitution of Zimbabwe Amendment No.2 Act are invalid.

Ultimately, the applicant seeks an order that both be set aside following a declaration of invalidity.

THE PARTIES

The applicant herein, the Law Society of Zimbabwe (hereinafter 'the LSZ') is a statutory corporate body set up in terms of the Legal Practitioners Act [Chapter 27:07]. It is the body responsible for the welfare and regulation of and for representing the legal fraternity in the country. It is capable of suing and being sued in its own right.

The first respondent is the Parliament of Zimbabwe (“Parliament”), with the second and third respondents being the heads of the Senate and the National Assembly, respectively.

The third respondent (hereinafter the 'Speaker') has deposed to the opposing affidavit on behalf of Parliament and the second respondent.

The fourth respondent is the President of Zimbabwe (hereinafter referred to as the 'President'), and the fifth respondent is the Minister of Justice, Legal and Parliamentary Affairs (hereinafter referred to as the 'Minister').

The sixth respondent is the Attorney-General of Zimbabwe. He is the Chief Legal Adviser to the government and has deposed to the opposing affidavit on behalf of the fourth and fifth respondents as well as himself.

Mr. Mubaiwa appears as amicus curiae.

THE FACTS

Sometime in 2017, Parliament enacted the Constitutional Amendment No.1 Act after it had gone through both the National Assembly and Senate. Its promulgation was challenged in this Court on the premise that it had not been validly enacted.

On 31 March 2020, the Constitutional Court set aside the proceedings of the Senate of 1 August 2017 because a two-thirds majority had not been reached. The Senate was directed to conduct a vote by the procedure set out in section 328(5) of the Constitution within a prescribed period.

For reasons not germane to this dispute, the Senate could not conduct a vote and applied to the Constitutional Court for an extension of the time to do so.

On 6 April 2021, the Senate passed the Constitution Amendment No.1 Bill pursuant to an order of the Constitutional Court granting an extension.

The applicant contends, that, the Constitution Amendment No.1 Bill, alternatively, Constitution Amendment No.1 Act 2021, is invalid for the reason that Parliament failed to fulfil a constitutional obligation, in that:

(i) It passed the Constitution Amendment No.1 Bill 2017 in violation of section 147 of the Constitution;

(ii) It failed to follow the procedure set out in section 328 of the Constitution;

(iii) It acted contrary to its constitutional duty, under section 119 of the Constitution, in failing to protect the Constitution and promote democratic governance in Zimbabwe;

(iv) In conformity with its constitutional duty, under section 119 of the Constitution, it still needs to ensure that its provisions are upheld and that it acts constitutionally and in the national interest.

On 17 January 2020, Parliament gazetted the Constitutional Amendment No.2 Bill.

On 8 June 2020, Parliament notified the public, through the Clerk to Parliament, that the Portfolio Committee on Justice, Legal & Parliamentary Affairs was to conduct nationwide public hearings on the Constitutional Amendment (No.2) Bill. The dates scheduled in the notice were 15 to 19 June 2020.

The record shows that the hearings were conducted from 14 to 19 June 2020.

On 20 April 2021, Parliament passed the Constitutional Amendment (No.2) Bill of 2019.

The applicant contends, that, Parliament failed to comply with the provisions of section 328(4) of the Constitution in that it did not immediately invite members of the public, as required by the section, to express their views on the proposed Bill in public meetings.

The applicant contends, that, Parliament should have convened meetings or availed facilities for holding public meetings for the said consultations.

In this regard, the applicant argues that Parliament failed to fulfil a constitutional obligation.

Consequently, it seeks relief against Parliament only, in respect of both Constitutional Amendment No.1 Act and Constitutional Amendment No.2 Act, more specifically, an order declaring that both were promulgated in violation of the Constitution and are thus invalid.

The respondents have all filed papers opposing the application on various bases.

Parliament has raised preliminary points in its opposing papers.

Although the other respondents did not raise any preliminary objections in their sole opposing affidavit, counsel for the fourth, fifth and sixth respondents, has, in oral argument before the Court, set out several points in limine, which I will advert to hereunder before determining the merits of the application.

At the outset of the matter being heard, counsel for the applicant informed the Court, that, the applicant no longer relied on section 85 of the Constitution to seek relief. He submitted that the applicant did not seek an express declaration of rights. Therefore, the application would be solely based on the provisions of section 167(2)(d) of the Constitution in that, in respect of both matters, Parliament had failed to fulfil its obligations under the Constitution in the manner in which both Acts were passed into law.

The first, second, and third respondents have raised several points in limine, which they contend are dispositive of the application, thus obviating the need to determine it on the merits.

The fourth, fifth, and sixth respondents did not raise any objections in the opposing affidavit or their heads of argument. The objections were, however, raised in oral argument by counsel at the inception of the hearing.

They are all on points of law relating to the procedural aspects of the application, and, therefore, stand for resolution by the Court.

This is a trite position in our court system which requires, that, any issue placed before the court by the parties must be determined and a decision rendered in respect of the same.

OBJECTIONS IN LIMINE BY PARLIAMENT

The first objection raised by Parliament, the first respondent herein, is that the applicant lacks the required locus standi to approach this court for the relief sought.

Counsel for the first respondent argued, that, the concession by the applicant, that it was no longer proceeding under section 85 of the Constitution, left it without a cause of action.

Secondly, it is contended on behalf of Parliament, that, the matter is not properly before the Court.

In this regard, Parliament suggests, that, the challenge by the applicant, of both the Constitution of Zimbabwe Amendment No.1 Act and the Constitution of Zimbabwe Amendment No.2 Act, on the basis that the respondents have failed to fulfil a constitutional obligation, cannot be bundled up in one application. The obligations sought to be invoked are disparate and distinct.

A challenge to the alleged absence of jurisdiction on the part of the Court, raised in the opposing affidavit, was not motivated in the written submissions, nor was it moved in the oral argument.

I take the view that it has been abandoned.

The last objection is that the applicant has no causa for the relief it seeks from the Court.

Counsel for the first respondent submitted, that, the applicant conceded that the Constitution of Zimbabwe Amendment No.1 Act was promulgated pursuant to an order of court. It is the position of counsel for the first respondent, that, once the applicant accepted that the amendment was effected in compliance with an order from the Court, then, it cannot found a cause of action under section 167(2)(d) of the Constitution alleging that the respondents had failed to fulfil a constitutional obligation.

SUBMISSIONS ON BEHALF OF THE FOURTH, FIFTH AND SIXTH RESPONDENTS

Counsel for the fourth, fifth, and sixth respondents, submitted that the application was invalid.

This objection stemmed from the fact, that, in the founding affidavit, the applicant states that the application was premised on section 167(2)(d) as read with section 85 of the Constitution and Rule 27 of the Constitutional Court Rules 2016. He argued, that, the validity of the application was determinable at the date of filing at which stage the applicant had stated that it was proceeding in terms of the provisions stated above.

Counsel argued further, that, the Constitutional Court enjoys exclusive jurisdiction under section 167(2)(d) of the Constitution, and the joinder of an application under section 85 of the Constitution was impermissible.

In this instance, he argued, that, the combination of the two causes of action rendered the application a nullity.

The second objection related to the relief being sought.

He argued that the draft order was defective as it was unclear whether the Court was being asked to invalidate the Act or the Bill.

Regarding the issue of locus standi, counsel argued that the relief in the application was not sought in terms of section 85 of the Constitution. The applicant did not seek a declaratur that a fundamental right had been violated and that consequential relief be issued by way of redress. Consequently, the cause of action had failed to relate to the relief being sought from the Court.

SUBMISSIONS ON BEHALF OF THE APPLICANT

Counsel for the applicant made the following submissions in response:

Counsel submitted, that, the applicant had not sought an express declaration of a violation of a right enshrined in [Chapter 4] of the Constitution. As a result, he was no longer relying on section 85 of the Constitution for relief.

Instead, he would pray for an order to the effect that Parliament had failed to fulfil its constitutional obligation in passing both Constitutional Amendment Act No.1 and No. 2 and that, consequently, both are invalid and should be set aside.

Regarding locus standi, counsel submitted, that, the applicant had standing under the Legal Practitioners Act. He contended, that, the applicant had alleged that it had a substantial and direct interest in the matter, thus establishing its standing.

He argued further, that, his counterparts were misconstruing the principle in Mudzuri & Anor v Minister of Justice, Legal and Parliamentary Affairs 2016 (2) ZLR 45 (CC) and that instead of limiting standing, the authority extended the basis on locus for any approach to the Constitutional Court.

SUBMISSIONS BY THE AMICUS CURIAE

Mr. Mubaiwa, who appeared as amicus curiae at the behest of the Court, made the following submissions:

He suggested that the applicant had pleaded standing under section 85 of the Constitution. As a result, it was his view that its reliance on section 167 of the Constitution, for standing, did not pass muster.

He contended, that, the applicant must have pleaded standing under section 167 of the Constitution, but failed to do so. The abandonment of section 85 of the Constitution left the applicant needing locus standi to approach the Court.

He prayed that, as a consequence, the application should be dismissed....,.

THE CAUSE OF ACTION

I turn next to the objections raised by the respondents. In this regard, I propose to address the alleged absence of a cause of action in so far as such causa is linked to the locus standi pleaded by the applicant.

Depending on its determination, I will proceed to determine the remaining objections ad seriatim.

The respondents have all taken issue with the alleged absence of a cause of action on the papers.

Even though counsel for the applicant abandoned reliance on section 85 of the Constitution for relief, this remains the sole cause of action pleaded by the applicant. The respondents contend that the cause of action has been destroyed by the applicant failing to plead and establish locus standi in terms of section 167(2)(d) of the Constitution before the Court.

I proceed to consider that objection simultaneously with the second objection, which is that the applicant has joined two causes of action in a single application.

This objection is premised on the averment in the founding affidavit that the application is brought in terms of section 167(2)(d) of the Constitution as read with section 85 of the Constitution.

It is contended by the fourth, fifth, and sixth respondents, that, an application under section 167 of the Constitution does not permit the citation of any party other than the President or Parliament.

Under section 167(2)(d) of the Constitution, so the argument went, this court enjoys exclusive jurisdiction, and the joinder of an application under section 85 of the Constitution is bad at law and highly improper.

Counsel also argued, that, the joinder of the two applications is improper and renders the application a complete nullity.

This court has previously considered and determined the impropriety of joining two causes of action in one application premised on the above provisions.

The jurisdiction exercised by the Constitutional Court under section 167(2)(d) of the Constitution is clear and distinct from that exercised under section 85 of the Constitution.

Regarding section 167(2)(d) of the Constitution, only the Constitutional Court may determine whether the President or Parliament has failed to fulfil a constitutional obligation. On the other hand, under section 85 of the Constitution, the Constitutional Court enjoys parallel jurisdiction with different courts as it permits any person to approach any court alleging the violation of a fundamental right enshrined under Chapter 4.

Section 85(3) of the Constitution is pertinent in this regard. It provides that “the rules of every court must provide for the procedure to be followed in cases where relief is sought under subsection (1) and those rules must ensure that…,.”

Thus, the conflation of the two causes of action under one application is impermissible and bad at law.

This Court underscores this in Zimbabwe Human Rights Association v Parliament of Zimbabwe & Ors CC06-22. In that decision, PATEL JCC stated…:

“For the sake of completeness, it is necessary to point out, that, the application, to the extent that it is premised on section 85(1) of the Constitution, has been made without leave in terms of Rule 21 of the Rules.

The need to comply with the Rules, generally, and with Rule 21 in particular, was forcefully reaffirmed by MAKARAU JCC in the recent case of Museredza & Ors v Minister of Agriculture, Lands, Water and Rural Resettlement & Ors CC11-21, at pp9, 11, 13-14 and 15.

The Court noted the critical distinction between the jurisdiction of a court, which is a matter of substantive law, and access to that jurisdiction, which is a question of adjectival or procedural law. It was further observed that applications for leave to obtain direct access, under Rule 21, serve the dual purpose of confirming that it is in the interests of justice to determine the matter at hand and as a gate-keeping function to sieve matters that this Court must determine in the interests of justice. The learned judge accordingly held, at p15, that:

'The practice of this Court therefore is that, where a litigant wishes to bring a new and fresh cause and the matter is not listed in Rule 21 as one for which leave is not required, then leave must be sought even if the matter is in the exclusive jurisdiction of the Court.'”…,.

The above remarks apply with equal force in casu.

Not only has the applicant not properly pleaded its cause of action, it has also conflated two causes of action into a single in a situation where the rules of the Constitutional Court set different procedural requirements in any approach to the court justifying the exercise of its specialized jurisdiction.

Section 167(5) of the Constitution provides that the Rules of the Court must permit any person, when it is in the interests of justice, with or without leave, to bring an application directly to the Court or to appeal directly to the Court from any other court.

Thus, section 167(5) of the Constitution speaks directly to those persons approaching the Constitutional Court, either directly, or wishing to appeal against the decision of a subordinate court, on the premise that it is in the interests of justice for the Court to grant them direct access.

In my view, the important phrase therein is “when it is in the interests of justice.”

There is no suggestion by the applicant that it seeks to approach the Court for relief and that its application falls in the category of applications contemplated under section 167(2)(d) of the Constitution.

From a construction of the provisions of section 85 and section 167(2)(d) of the Constitution, I find that the former is an application brought in the interests of justice whereas an application under section 167(2)(d) is not.

It seems to me that there is a clear distinction between applications under section 85 and applications under section 167(2)(d) of the Constitution.

While an application under section 85 of the Constitution may, depending on the peculiar circumstances of the case, require leave of court, one under section 167(2)(d) of the Constitution does not; whilst the Rules have therefore made provision for the requirement of leave under Rule 21, the requirement for leave has been dispensed with in an application under section 167(2)(d) of the Constitution.

It seems to me, therefore, that, the objection by counsel for the fourth, fifth and sixth respondents, on the joinder of two causes of action, was properly taken.

The objection is therefore upheld.

Ordinarily, this should be dispositive of the application, but, I take the view that it is pertinent and necessary to determine the issue of whether or not the applicant has satisfied the obligation to plead locus standi which is linked to or premised on the cause of action and relief sought before the Court.

LOCUS STANDI

The starting point, in my view, is the court's approach to standing under the common law, which is stringent and restrictive.

In general terms, under the common law, a litigant who approaches the court for relief must establish that he or she has a direct and substantial interest in the matter in question. To be properly before the court, such a litigant must show the infringement of some right or that his or her personal interests have been adversely affected, resulting in the litigant approaching the court for redress.

Thus, a party must show that he or she has a direct, personal, and substantial interest in the matter in contention.

In Zimbabwe Stock Exchange v Zimbabwe Revenue Authority SC56-07, MALABA JA…, said:

“The common law position on locus standi in judicio of a party instituting proceedings in a court of law is that to justify participation in the action, the party must show that he or she has a direct and substantial interest in the right, which is the subject matter of the proceedings and the relief sought.”…,.

Locus standi in judicio refers to one's right, ability, or capacity to bring legal proceedings in a court of law.

One must justify such right by showing that one has a direct and substantial interest in the subject-matter and outcome of the litigation: see Zimbabwe Teachers Association & Ors v Minister of Education and Culture 1990 (2) ZLR 48 (HC).

See also Dalrymple & Ors v Colonial Treasurer 1910 TS 372; Henri Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O); United Watch Diamond Co (Pty) Ltd & Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (C); Deary NO v Acting President & Ors 1979 RLR 200 (G); SA Optometric Association v Frames Distributors (Pty) Ltd t/a Frames Unlimited 1985 (3) SA 100 (O); Molotlegi & Anor v President of Bophuthatswana & Ors 1989 (3) SA 119 (B).

In Sibanda & Ors v The Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc SC49-18, HLATSHWAYO JA…, considered the principle of locus standi and stated the following:

“It is trite that locus standi is the capacity of a party to bring a matter before a court of law. The law is clear on the point, that, to establish locus standi, a party must show a direct and substantial interest in the matter: see United Watch & Diamond Company (Pty) Ltd & Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (C) at 415 AC and Matambanadzo v Goven SC23-04.”

In accordance with the general rule, that the party instituting proceedings must allege and prove that he has locus standi, the onus of so establishing rests upon the applicant.

Consequently, a litigant must show that he has the right or capacity to bring a matter to court and a right to appear in court.

Locus standi is the other side of the coin to jurisdiction.

It is incumbent, therefore, that, the applicant establishes locus standi in judicio to invoke the jurisdiction of the court to exercise its power in its favour: see Mars Incorporated v Candy World (Pty) Ltd 1991 (1) SA 567 (AD)…,.

A party instituting legal proceedings of any nature must show that both he and the party being sued, in layperson's terms, have a real interest in the matter being brought to court. A litigant must show his authority to sue or be sued and that the other party is one over which the court can exercise its jurisdiction. Any party instituting process in which relief is sought from the court is obliged to place itself as a party before the court seized with the dispute.

The applicant approached the court pursuant to section 85 of the Constitution. It did so more specifically in terms of section 85(1)(e) as the association has an obligation, in terms of the Legal Practitioners Act, to represent the interests of the legal fraternity in the country.

The applicant also states that it has “a direct and substantial interest to see that laws are passed and/or amended in compliance with the Constitution, including the Constitution itself.”…,.

The contention made on the respondents behalf is that the applicant has not pleaded any basis upon which it could be found as having locus standi in judicio under section 167(2)(d) of the Constitution in terms of which it sought relief.

In casu, in its papers, particularly the founding affidavit, the applicant had specifically pleaded that it is approaching this Court in terms of section 85 of the Constitution. The reasonable expectation that arises from this statement or averment is that a litigant approaching a court in terms of section 85 of the Constitution intends to enforce a fundamental human right or freedom.

The approach of the courts, generally, on the question of locus standi under the common law is rather restrictive.

The South African Supreme Court of Appeal in Four Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SA 451 (SCA) considered the requirements of locus standi. It held that –

“The logical starting point is locus standi — whether, in the circumstances, the plaintiff had an interest in the relief claimed, which entitled it to bring the action.”

Generally, the requirements for locus standi are these:

The plaintiff must have a sufficient interest in the subject matter of the litigation, usually described as a direct interest in the relief sought; the interest must not be too remote; the interest must be actual, not abstract or academic; and it must be a current interest and not a hypothetical one.

The duty to allege and prove locus standi rests on the party instituting the proceedings.

On the other hand, the courts have adopted a broad and generous approach when it comes to standing to give access to court to those litigants wishing to enforce rights under the Constitution.

The principle upon which the courts exercise this discretion is that the effective enforcement of a justiciable Bill of Rights requires that courts adopt a broad approach in so far as standing under the Constitution is concerned.

This Court has extensively canvassed the issue of locus standi in the case of Gonese & Anor v President of Zimbabwe & Ors CC10-18, wherein PATEL JCC elucidated the approach of this Court as follows:

“In the Doctors for Life case (supra), at para 218, NCGOBO J recognized the need to find a proper balance between avoiding improper intrusions into the domain of Parliament and ensuring that constitutional provisions are sufficiently justiciable so as not to be rendered nugatory.

The latter consideration, in my view, behoves this Court to adopt a liberal and generous approach to locus standi in matters involving constitutional rights and obligations. This is so notwithstanding the constitutional and statutory independence enjoyed by Parliament in the control of its own affairs: see Smith v Mutasa N.O. & Anor 1989 (3) ZLR 183 (SC) at 208 & 209. See also Mudzuru & Anor v Minister of Justice, Legal and Parliamentary Affairs N.O. & Ors CC12-15, at pp.13-15, where this Court, per MALABA DCJ (as he then was), eschewed the narrow traditional conception of locus standi in favour of a broad and generous approach to standing in constitutional matters.”…,.

What I must consider, therefore, is whether the applicant has sufficiently placed enough factual allegations to lead to a conclusion that it has the necessary locus standi to approach the Constitutional Court for relief under section 167(2)(d) of the Constitution.

From a perusal of the founding affidavit, in setting out the premise of its locus standi, the applicant avers that, in addition to it approaching the Court in terms of section 85, on behalf of its members, it “has substantial interest to see that laws are passed and/or amended in compliance with the Constitution - including amendments to the Constitution.”

Although the applicant pleads that it has primarily approached the Court in terms of section 85 of the Constitution, in other portions of its founding affidavit, it purports to approach the Court in terms of section 167(2)(d) of the Constitution.

As already noted, the Rules relating to standing for each approach are different.

Whilst the applicant brought the matter premised on an alleged violation of a fundamental right enshrined in Chapter 4 of the Constitution, the relief sought, however, is an order to the effect that Parliament failed to fulfil a constitutional obligation in the manner in which the amendments were passed into law.

Section 85(1) of the Constitution defines the different classes of people who may approach the Constitutional Court to seek redress in terms of that section. This Court has settled the position that section 85(1) of the Constitution has liberalised standing, thus allowing a person who ordinarily could not seek redress for an injury another person had suffered to do so.

See M & Anor v Minister of Justice, Legal and Parliamentary Affairs N.O. & Ors 2016 (2) ZLR 45 (CC) and Mawarire v Mugabe & Ors 2013 (1) ZLR 466 (CC).

Section 167(2)(d) of the Constitution, however, is silent on the nature of standing entitling a person to approach this Court under it.

Rule 27 of the Constitutional Court Rules is also silent on the nature of standing that an applicant is expected to set out.

The generous approach to locus standi, in constitutional matters, does not excuse a litigant from satisfying the Court that he or she has the requisite standing to bring the suit.

A comparison of the provisions of Rule 21of the Constitutional Court Rules, allowing for access under section 85 of the Constitution, and Rule 27 of the Constitutional Court Rules, in terms of which the conduct of the President or Parliament may be impugned for failing to comply with a constitutional obligation, shows that those provisions are very different.

Whereas Rule 21 of the Constitutional Court Rules obliges an applicant to establish that the application is in the interests of justice, the latter Rule premises the application on an allegation of failure to comply with a constitutional obligation.

The requirement for a litigant approaching the court in terms of a provision of the Constitution to properly plead its cause and adhere to the Rules was emphasized in Zimbabwe Human Rights Association v Parliament of Zimbabwe & Ors CC06-22, wherein PATEL JCC opined:

“I should also highlight the other imperative of the rules of practice and procedure, to the effect, that, the pleadings relied upon by every litigant must be framed with crystal clarity to enable the court and the other parties involved to comprehend and respond to that litigant's cause of action and assertions.

This aspect was crisply underscored by GARWE JA (as he then was) in Medlog Zimbabwe (Pvt) Ltd v Cost Benefit Holdings (Pvt) Ltd 2018 (1) ZLR 449 (S), at 455G:

'In general, the purpose of pleadings is to clarify the issues between the parties that require determination by a court of law.'

After citing various authorities, both in this jurisdiction and elsewhere, the learned judge concludes, at 457G:

'The position is therefore settled, that, pleadings serve the important purpose of clarifying or isolating the triable issues that separate the two litigants. It is on those issues that a defendant prepares for trial and that a court is called upon to make a determination. Therefore, a party who pays little regard to its pleadings may well find itself in the difficult position of not being able to prove its stated cause of action against an opponent.'”…,.

Attention may also be drawn to the cautionary sentiments of MAKARAU JCC in Mliswa v Parliament of the Republic of Zimbabwe CC02-21, on the need to plead one's cause of action with precision.

In casu, a perusal of the founding affidavit reveals that even though the applicant pleaded locus standi under section 85 of the Constitution, there is no cause of action linked to section 85 of the Constitution on the papers. Instead, all the averments in the affidavit point to an alleged failure to fulfil a constitutional obligation on the part of Parliament.

It seems to me that the applicant, in framing the application, wished to place itself before the Court under section 85 of the Constitution in order to establish its locus standi, but sought relief under section 167(2)(d) of the Constitution.

It is apparent, that, the applicant assumed, and, was under the mis-apprehension that it was entitled to plead both section 85 and section 167(2)(d) of the Constitution as the vehicle to place itself before the Constitutional Court.

What an applicant needs to plead to establish locus standi under section 167(2)(d) of the Constitution was clarified by the Constitutional Court in Chirambwe v President of the Republic of Zimbabwe & Ors CC04-23.

This Court remarked as follows from paragraph 40 of the judgment:

“…,. That the new Constitution expanded the locus standi of persons seeking to approach the court is now settled. For example, in direct applications brought under section 85(1) of the Constitution, torch bearers are now permitted to seek redress on behalf of the general public or in the interests of a group or class of persons.

In respect of an application alleging that the President or Parliament has failed to fulfil a constitutional obligation, Rule 27 of the Constitutional Rules 2016 requires an applicant to depose to an affidavit setting out the constitutional obligation in question and what it is alleged the President or Parliament failed to do in respect of such obligation.

That the locus standi of applicants seeking constitutional protection and enforcement has been extended is now accepted by this Court.

In Everjoy Meda v (1) Maxwell Matsvimbo Sibanda (2) Zambe Nyika Gwasira (3) The Sheriff of the High Court of Zimbabwe (4)The Registrar of Deeds CC10-16, MALABA CJ made pertinent remarks…, that:

'The purpose of the section is to allow litigants as much freedom of access to the courts on questions of violation of fundamental human rights and freedom with minimal technicalities…,.'

Similarly, in Innocent Gonese (2) Jesse Majome v (1) The President of Zimbabwe (2) Parliament of Zimbabwe (3) Minister of Local Government, Public Works and National Housing N.O. CC10-18, PATEL JCC, writing for the court, remarked…, that:

'…, the latter consideration, in my view, behoves this Court to adopt a liberal and generous approach to locus standi in matters involving constitutional rights and obligations: See also Mudzuru & Anor v Minister of Justice, Legal & Parliamentary Affairs N.O. & Ors CC12-15 at pp13-15 where this Court, per MALABA DCJ (as he then was), eschewed the narrow traditional conception of locus standi in favour of a broad and generous approach to standing in constitutional matters…,. In my view, the applicants have an unquestionable right, both as citizens and as legislators, to vindicate any perceived violation of the Constitution….,.

Considering the whole tenor of the current Constitution and the cases cited above, I have no doubt in my mind, that, it is no longer a requirement for an applicant in a constitutional application, such as the present, to demonstrate that a particular constitutional right has been violated in respect of him/her personally.

The applicant makes it clear that he approaches the court in his capacity as a citizen and resident of Zimbabwe. The point in limine taken on this aspect must therefore fail.”

Given the above dicta, as clearly expressed by this Court, it is apparent that the applicant must aver, in its affidavit, facts which, if proved, would establish a failure to fulfil a constitutional obligation.

The complete absence of a factual basis upon which to approach the Constitutional Court for relief under section 167(2)(d) of the Constitution may leave a litigant without obtaining relief.

When describing the nature of the application, the applicant stated, that, it was an application brought in terms of section 167(2)(d) of the Constitution as read with section 85 of the Constitution.

This is all that it pleaded in justifying its approach to the Constitutional Court under section 167(2)(d) of the Constitution.

This must be read in conjunction with its claim to locus standi under section 85 of the Constitution wherein it states that it has a direct and substantial interest to see that laws are passed and/or amended in compliance with the Constitution, including amendments to the Constitution itself.

This statement is vague as it only speaks to laws being passed and/or amended in compliance with the Constitution, including amendments to the Constitution itself. It does not make specific reference to the intention to hold Parliament to account and the standing upon which the applicant considers that it is clothed with the requisite locus standi to do so.

This is against the settled position that legal standing should be pleaded or established.

The need to comply with the Rules in any application under the Constitution was re-affirmed by PATEL JCC in Zimbabwe Human Rights Association v Parliament of Zimbabwe & Ors CC06-22 wherein the learned judge stated:

“Having regard to the relevant passages in the founding affidavit that I have referred to earlier, it is abundantly clear that the applicant has predicated its locus standi on section 85(1) of the Constitution. On the other hand, its cause of action is specifically founded on the alleged failure of the first and second respondents to fulfil their constitutional obligations. Thus, the applicant's claim to activate the jurisdiction of this Court is exclusively anchored in section 167(2)(d) of the Constitution. This is then mirrored in the declaratory and substantive relief that it seeks both of which are confined to the juridical ambit of section 167(2)(d). The order prayed for makes no mention whatsoever of any infringement of a fundamental right giving rise to locus standi under section 85(1) and the jurisdictional competence of this Court under that provision.

In essence, what the applicant has purported to do is to proceed under two mutually exclusive provisions of the Constitution, viz. section 85(1) and section 167(2)(d).

This course of action was pointedly frowned upon in Central African Building Society v Stone & Ors SC15-21…, where GWAUNZA DCJ observes that:

'…,. An application under section 85 of the Constitution should not be raised as an alternative cause of action…,. Section 85(1) is a fundamental provision of the Constitution, and, an application under it, being sui generis, should ideally be made specifically and separately as such.'”

I find myself in agreement with the dicta in the above authorities and I respectfully associate myself with the remarks therein.

The applicant was obliged to plead its locus standi with the precision and clarity required. It ought to have pleaded a cause of action properly, starting with locus standi, thus enabling the court to exercise its special jurisdiction under section 167(2)(d) of the Constitution.

I find, that, in the circumstances, the matter can be resolved in favour of the respondents. The applicant, therefore, has not established locus standi in judicio to approach the court for relief under section 167(2)(d) of the Constitution.

DISPOSITION

Thus, it is the duty of the party instituting court proceedings to make out a case that he or she has locus standi to approach the Court for appropriate relief and that the Court can exercise jurisdiction over the party on the other side.

If he fails to do so, his case will fail. He will not have an opportunity to correct his error.

An opposing party can raise the issue of an absence of locus standi at any time in the proceedings.

The Court may not condone the lack of locus standi, even if the parties agree between them to litigate with one another. If locus standi is absent, the proceedings are invalid.

While the question of locus standi, to an extent, is a procedural issue, it is also a matter of substance. It concerns the sufficiency and directness of a person's interest in litigation justifying a basis for that person to be accepted as a litigating party. The sufficiency or the existence of the requirement of interest depends on the facts of each case. It is for the party instituting proceedings to allege and prove its locus standi.

The onus to establish any issue rests on that party relying upon it.

It is thus necessary for a party, in all cases, to allege, in its pleadings, facts sufficient to show that it has locus standi to bring an action. This applies to all proceedings, whether by application or summons.

The applicant has not met the onus to establish locus standi in judicio.

In addition, the applicant has conflated two causes of action, and, in practical terms, this resulted in the applicant placing itself out of the Court's jurisdiction. The application must therefore fail and should be dismissed.

In opposing the application, the respondents prayed for the application to be dismissed with costs.

The prayer for costs was not persisted with in argument.

This is a proper approach, as, the general principle is that courts should not order costs against the losing litigant, in constitutional matters, lest deserving litigants are discouraged from approaching the courts for redress.

In the premises, I make the following order:

The application is dismissed with no order as to costs.

CC14-20 : HILTON CHIRONGA and RASHID MAHIYA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HOME AFFAIRS and MINISTER OF DEFENCE and GOVERNMENT OF ZIMBABWE
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATHSWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

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.

FACTUAL BACKGROUND

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.

ISSUES

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....,.

LOCUS STANDI AND DIRECT ACCESS

There was ultimately no debate in relation to standing. The applicants averred that they had standing and the right to directly approach the Constitutional Court under section 167(5) as read with section 85(1)(a) and (d) of the Constitution.

Ordinarily, the applicant would have required leave to approach the court directly, but, since the Rules were promulgated only in June 2016, this requirement cannot be taken against him. At any rate, the applicant does satisfy the requirements for direct access.

Section 167(5) of the Constitution confers to any person a right to bring a constitutional application directly to this Court in the interest of justice. The applicant (because, in essence, there is only one who is properly before the court) as a citizen of Zimbabwe, does qualify as “any person” identified in section 167(5) of the Constitution authorized to bring a matter to the Constitutional Court.

What has been brought before the court is a constitutional matter and the application is being brought in the interest of justice.

With regard to the constitutionality of the matter, section 332 of the Constitution defines a constitutional matter as:

“…, a matter in which there is an issue involving the interpretation, protection or enforcement of this Constitution;”

Clearly, the application brings to this Court a constitutional matter by seeking to enforce compliance with section 210 of the Constitution. It is also in the interest of justice for the applicant to seek to uphold the Constitution by compelling the realisation of constitutionally created obligations.

The applicant, therefore, has the right to approach the Constitutional Court directly in terms of section 167(5) of the Constitution and his locus standi is not in doubt nor is it challenged.

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

ln Case No. HC2166/21 the applicant sought declaratory relief as follows:“IT IS DECLARED THAT:1. The first respondent (Judicial Service Commission) in failing to activate the provisions of section 180 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 and/or the provisions of section 180 of the Constitution of Zimbabwe as ...

ln Case No. HC2166/21 the applicant sought declaratory relief as follows:

“IT IS DECLARED THAT:

1. The first respondent (Judicial Service Commission) in failing to activate the provisions of section 180 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 and/or the provisions of section 180 of the Constitution of Zimbabwe as amended by Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) diligently and without delay violated section 324 of the Constitution of Zimbabwe as amended.

2. The second respondent (Chief Justice Luke Malaba) cannot, by virtue of section 328(7) of the Constitution of Zimbabwe, as amended, benefit from the term limit extension as introduced by an amendment of section 186 by the Constitution of Zimbabwe Amendment (No.2) Act 2021.

3. As a consequence of 2 above, the second respondent shall vacate office as the Chief Justice of Zimbabwe on (sic) midnight of 15 May 2021.

4. Any action, conduct, act, or deed of second respondent post the 15th of May 2021, purportedly as Chief Justice of Zimbabwe, is null and void and of no force or effect.

5. Any attempt to continue in office by second Respondent as Chief Justice of Zimbabwe and/or any continuation in office by second respondent, purportedly as Chief Justice of Zimbabwe, violates applicants right of access to a court of law established by law and applicants right to protection of the law in accordance with section 69(4) and section 56(1) of the Constitution 2013 as amended.

6. The second respondent, in any event, can no longer be a judge of the Constitutional Court for more than 15 years in violation of section 186(1) of the Constitution 2013 as amended.

7. ln the alternative, section 14 of the Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) is invalid for violating section 56(3) of the Constitution 2013 and is accordingly struck down.

8. There shall be no order as to costs."...,.

The applicant did not make any submissions in support of the alternative relief being sought in paragraph 7 of the draft order.

We take it that this relief, seeking the declaration of invalidity in respect of section 13 (which was incorrectly referred to as section 14) of the Constitution of Zimbabwe Amendment (No.2) Act 2021, is not being persisted with.

HB38-11 : JONATHAN NATHANIEL MOYO vs JOHN LANDA NKOMO and DUMISO DABENGWA
Ruled By: BERE J

On 18 July 2005, the plaintiff issued summons out of this court against the defendants for the payment of Z$2,000,000,000= (two billion dollars) being damages for defamation. The claim was strenuously denied by the two defendants leading to the subsequent protracted trial.The detailed backgroundAt the time this suit was initiated, ...

The detailed background

At the time this suit was initiated, the plaintiff was the Minister of Information and Publicity in the Office of the President and Cabinet. The first defendant was a cabinet Minister and the National Chairman of a political party called ZANU (PF). The second defendant was a committee member of the Politburo of the same political party - ZANU (PF).

The circumstances which led to this suit, and as taken from the plaintiff's declaration, were given as follows:

“4. On the 12^th of January 2005 both defendants said of and concerning the plaintiff words to the following effect:

4.1 That the plaintiff had instigated, funded and led the hatching of a coup plot against President Robert Mugabe and others in the top leadership of ZANU (PF) party with the view of removing the national leadership of the government.

4.2 That the coup plot by the plaintiff crafted a “Tsholotsho Declaration” that detailed the coup plot.

4.3 That plaintiff had paid unspecified sums of money sourced from foreign persons or countries hostile to Zimbabwe to unnamed people including some members of ZANU (PF)'s Tsholotsho District Coordinating Committee (DCC).

4.4 That the plaintiff was to be barred from contesting in the ZANU (PF) primary election because of his role in the coup plot.

5. The above meeting and statements made by both defendants were widely published in the press circulating in the country.

6. The statements by the defendants of and concerning the plaintiff were false, wrongful, unlawful and highly defamatory of the plaintiff…,.”

For the alleged utterances by the defendants the plaintiff sought to be paid a sum of Z$2,000,000,000,= (two billion dollars) in defamation damages.

In response to the claim against them both defendants denied any form of liability and offered a joint plea.

In their joint plea to the plaintiff's claim, both defendants accepted having attended the meeting in Tsholotsho on the 12^th of January 2005 but denied that that meeting was a public meeting. The defendants denied having addressed the meeting in issue. The defendants denied everything that was alleged against them by the plaintiff.

They, however, concluded their plea by stating as follows:

“5.2 In any event, even if the words complained of were defamatory, which is not admitted, defendants aver that the statements were true or substantially true and the publication thereof for the public benefit.

5.3 In the circumstances, any publication of these statements in the press, which is not admitted was not wrongful.”...,.

This issue raises the defence of justification which was part of the defendant's plea....,.

By filing this plea, and put in simple terms, the defendant was advising the court: “My Lord, I did not utter these words. However, in the event that you find that when I say I did not utter these words I actually uttered then, I would then argue they were true or substantially true and for the public benefit.”...,.

Perhaps it is necessary for me to reaffirm the position that the onus to sustain this alternative plea lay squarely on the shoulders of the defendant.

SC70-19 : ADRIAN READ vs JOHN GARDINER and SAFARI HUNTERS (PRIVATE) LIMITED
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

This is an appeal against the judgment of the High Court dismissing, with costs on a legal practitioner and client scale, an application for condonation of the failure to apply for the rescission of a default judgment granted in Case No. HC2424/17 within the time stipulated by the High Court ...

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

In chambers in terms of Rule 5 of the Rules of the Supreme Court 1964.

The applicants are appearing before a judge of this Court for the third time, their earlier applications having been dismissed on procedural grounds.

Essentially, in this, and the previous two applications, the applicants are requesting this Court to give to them leave, which they perceive to have been denied by the Labour Court, to file a belated appeal against their dismissal from employment with the respondent.

In this quest, the two have made tracks back and forth between the Labour Court and this Court, with the result that the matter is now hopelessly entangled in procedural niceties.

It became evident to me that this 'tangle' had to be unravelled first before a way forward could be ascertained. This is particularly so given that the legally unrepresented, but determined, applicants are pressing to have their day in court, albeit, they complicated matters further by filing lengthy and repetitive submissions with each application they brought before both the courts.

Accordingly, after hearing the parties, and, in order to enable me to properly determine the matter, I directed them to re-construct the record and arrange all the applications, and other papers, in the order they had been filed. I indicated I would then peruse the record and give any directions that may be necessary to unlock the process and have the matter move forward.

This would, at the same time, point the applicants to any options that may be open to them in terms of the way forward.

Chronicled below, in conveniently numbered paragraphs, are the relevant facts of the matter, as well as the sequence of events, in so far as I have been able to make them out. I have interspersed the narration/analysis with relevant observations or findings of my own;

1. The applicants are former employees of the respondent; they were dismissed on misconduct charges of theft and fraud in 2009.

2. Having unsuccessfully pursued all internal remedies for redress, they appealed to the Labour Court, on the 30th of October 2009 against their dismissal. In a detailed judgment, the Labour Court dismissed the appeal having found that the two had been properly charged, convicted, and dismissed.

3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.

4. On the 16th of March 2010, some sixty-six days beyond the stipulated time limits, the applicants filed an application in the Labour Court titled “APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT.”

The relief sought, according to their draft order, mirrored the same title.

A look at the founding affidavit shows that the applicants appreciated the fact that their application would be filed out of time, and that, therefore, they would need to secure condonation of the late filing of the application.

This is evidenced by paragraph (viii) of the founding affidavit, which reads as follows;

“I humbly urge this Honourable Court to condone the delay in this application for leave to appeal to the Supreme Court on the basis that:

(i) I travelled to my rural home ending up in too much delay of noting an appeal (sic).

(ii) As a self-actor, I took too long to find the Labour Court Rules that I can prepare my application.” (sic)

The request for condonation, apart from not being reflected in the title of the application, was, in addition, not incorporated into the draft order.

As indicated later in this judgment, the Judge a quo took the view, that, no application for condonation was before the court.

5. Nevertheless, the Judge issued the following order on the 23rd of June 2010;

“The application for leave to appeal to the Supreme Court be and is hereby denied on the basis that it was out of time and the reason for the delay was not a reasonable one.”…,.

I find this order to be incomprehensible in a number of respects;

(a) Having taken the view that there was no proper application for condonation of the late application for leave to appeal to the Supreme Court, it is not clear why or how the court could have proceeded to 'dismiss' the application for leave to appeal to the Supreme Court.

(b) The reasons given for the 'dismissal' of the application for leave to appeal to the Supreme Court are reasons properly associated with an application for condonation of failure to comply with the rules of the court;

(c) While the reasons might have suggested that the Labour Court had in fact entertained an application for condonation of the late filing of the application for leave to appeal, the court dispelled this notion by specifically stating in its order, that, it had dismissed the application for leave to appeal to the Supreme Court; and

(d) Even were it to be taken that the court entertained the application for condonation, the absence of an order specifically granting such condonation establishes otherwise.

6. What is evident, though, is that the Labour Court did not consider the merits of the application for leave to appeal to the Supreme Court. Indeed, it could not have properly done so without first condoning the late filing of such an application. The applicants were barred, and, at that point in time, out of court.

The applicants should have filed a composite application;

(a) For condonation of the late filing of the application for leave to appeal; and

(b) For leave to appeal to the Supreme Court.

Because they did not do so, the application for leave to appeal to the Supreme Court was not properly before the Labour Court.

7. I am of the firm view, that, instead of dismissing the application for leave to appeal to the Supreme Court for the reasons it gave, the Labour Court should have properly struck the application off the roll.

It is also my opinion, that, since a court cannot dismiss what is not before it, the Labour Court's order of 23 June 2010, was incompetent.

8. Had the Labour Court struck the matter of the roll, the applicants would most likely have been alerted to the need to file a proper application with the same court, for condonation, together with one for leave to appeal to the Supreme Court.

9. As this did not happen, the applicants, who felt aggrieved by the decision 'dismissing' their application for leave to appeal, and had no reason to believe the order to be incompetent, mistakenly, but understandably (being legally unrepresented), filed a chamber application before this court on the 19th of July 2010, under case number SC175/10.

They sought the leave of a Judge to appeal to it (purportedly) in terms of section 92F(3) of the Labour Court Act (“the Act”).

10. The application was dismissed in chambers by GARWE JA on the 14th of December 2010, without considering the merits thereof. This was on the basis, that, this Court could not consider the application for leave to appeal to it before:

(i) Condonation for the late filing of that application in the Labour Court had been obtained; and

(ii) The leave of the Labour Court had been properly sought and denied.

11. After the dismissal of their application by a Judge of this Court, significantly, not on the merits, as indicated in paragraph 9, the applicants approached the Labour Court on the 21st of December 2010 and filed a composite application for -

(i) Condonation of the late filing of the application for leave to appeal to the Supreme Court against the Labour Court's order of 30 October 2009; and

(ii) Leave to appeal to the Supreme Court.

12. On the 21st of February 2011, the Labour Court made a ruling that it could not 'plough the same road' as it had already made a decision on that particular issue. It made the following order;

“1. The Court has dealt with the application for leave to appeal and dismissed it on 23 June 2010;

2. The court is thus functus officio and must dismiss the present application;

3. The application is accordingly dismissed.”…,.

13. It is my considered view, based on the foregoing analysis, that the Labour Court was misguided in its view that it had already heard and determined the application for leave to appeal to this Court. As stated above, and despite the wording of its order of 23 June 2010, the court had NOT properly heard nor determined the application for leave to appeal against its decision of 30 October 2009.

14. In stating this, I am fully cognisant of the fact, that, I am not sitting as an Appeal Court to consider this matter.

Accordingly, as a single judge in chambers, I cannot make, and indeed, should not be taken to be making, a final pronunciation on the matter.

Such a task would properly be within the preview of an appeal bench of this Court.

With this in mind, I nevertheless hazard to express the view, that, contrary to its finding, the Labour Court was, in effect, not functus officio and should properly have entertained the application filed by the applicants on 21 December 2010.

It seems to me, that, the Labour Court judge failed to appreciate the fact, that, the applicant's seemingly repeated filing of the same application was traceable, in part, to the court's failure from the onset (i.e. 16 March, 2010) to indicate to the applicants (by striking the matter off the roll) that they could not apply to it for leave to appeal to the Supreme Court without first seeking its condonation of the late filing of such application.

That the court fully appreciated that this was the correct sequence of events to be followed, is evident from the following observations contained in the judge's reasons for the decision in the question;

“The reason (for dismissing the application of 21 December 2010, for condonation and for leave to appeal) are that on 23 June 2010 an application for leave to appeal was dismissed because it was filed out of time. At that time, no application for condonation was made….,.

The two applications that were filed sought to resuscitate a matter that had been dealt with to finality - at least before this Court. Should I condone the application for leave that has already been denied? I could not consider the second application for leave to appeal because I had already denied it. It was water under the bridge. I could not deal with the application because it was ill timed. It ought to have preceded the first application for leave which I had already dismissed.”

15. A couple of pertinent observations can be made from this rather unclear reasoning.

(i) Firstly, the judge a quo properly realised that the first application by the appellants needed to be preceded by an application for condonation of its late filing. The learned judge, however, then fell into the error of not fully appreciating the implication of this default vis a vis the application for leave to appeal to the Supreme Court.

This was that, absent an application for condonation of late filing of the application for leave to appeal, there was nothing before the court to dismiss.

The later application could not stand on its own, being premised on nothing.

(ii) Secondly, since the dismissal in question was, in my view, incompetent, there would have been nothing to prevent the court from hearing the two applications.

Thus, nothing was dealt with 'to finality'.

16. Be that as it may, the applicants did not, as they may have done, take the requisite steps to appeal to this Court against the Labour Court's finding that;

(i) It was functus officio; and

(ii) That, it had already dealt with the application for leave to appeal to the Supreme Court.

17. The applicants, instead, came back to this court seeking an order for leave to appeal against the court a quo's decision on the main dispute.

18. Needless to say, this application was repetitive and therefore improper.

The ground upon which the first application had been dismissed, that is, absence of condonation by the Labour Court, was still in point.

19. The application was heard and dismissed by GARWE JA on 17 November 2011. As a mark of its displeasure, this Court ordered that the applicants pay costs on the higher scale.

20. To the extent that this court had earlier dismissed the same application, albeit, and also without considering the merits, it could have been argued that the matter was res judicata and that this court was functus officio.

The judge, however, did not make a pronouncement nor issue an order to this effect.

21. The appellants apparently felt they could still pursue the dispute, and, in a manner suggestive of their now being totally confused and entangled in a true web of procedural technicalities, the relentless applicants went back to the Labour Court on 7 December 2011 and filed an application with this somewhat confusing title;

“CHAMBER APPLICATION FOR CONDONATION FOR LATE FILING OF AN APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION AND APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION FOR LEAVE TO APPEAL TO THE SUPREME COURT”

What immediately becomes evident from this title is the fact, that, the application in question was premised on the view, that, an application for condonation of the late filing of an application for leave to appeal to the Supreme Court had been heard and refused by the Labour Court.

The opposite was in fact the case.

The learned judge, in the excerpt from her judgment that is cited in paragraph 14 above, made it very clear why she was not going to entertain such an application. Nor did she, in the end, do so.

The application was therefore misguided.

22. Having, again, found no satisfaction from the Labour Court, the applicants have now, yet again, approached this Court with this application, which is no less misguided than the last one they made before the Labour Court (see above).

The application brings nothing new to this Court unless it is to demonstrate the applicants sheer determination to pursue the matter to what they perceive to be its logical conclusion - whatever pitfalls may stand in their way.

As this Court has entertained the same matter several times, it is my view, that, the court is now functus officio.

The dispute has gone round in circles for a period of over five years and there must be finality to litigation.

The application now before me is, in any case, not sustainable in its current form.

Accordingly, the application is dismissed with costs.

HMT03-19 : THE TRUSTEES OF THE UNITED MUTARE RESIDENTS AND RATEPAYERS TRUST (UMRRT) vs CITY OF MUTARE and THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS & NATIONAL HOUSING
Ruled By: MUZENDA J

On the 23rd of March 2015, Mr Sebastian Bakare; Mr Terrance Moody; Ms Natsai Nyamuwanza; Mr Cephas Sagwete; Ms Poshier Magada; Ms Maraidza Elizabeth Mutambara joined together to form United Mutare Residents and Ratepayers Trust.

Counsel for the applicant appears on the copy of the Resolution dated 3rd July 2018 which was prepared just a day before the current application was filed at Court was added to the list of Trustees.

Clause 6 of the Deed of Trust specifies the applicant's Core Business thus:

“The provision of a comprehensive platform for residents participation in local governance, service delivery, local democracy, and policy formulation, accountability and transparency.”

Article 2, captioned “LEGAL STATUS” provides inter alia:

“The Trust shall be a body corporate and as such…,.”

It is not clear as whether it can sue or be sued in its name, however, it can acquire, own, and is
limited to its property in as far as liability is concerned.

On the 4th of July 2018, the applicant filed an application seeking the following relief:

“It is declared that 1st Respondent has failed to comply with its Constitutional mandate to 'ensure good governance by being effective, transparent, accountable and institutionally coherent' in exercising its right to govern the local affairs of the Community of Mutare by not carrying out an external audit of books, balance sheet and accounts for the financial years ending 30 June 2014, 30 June 2015, 30 June 2016 and 30 June 2017.

2. And it is ordered that:

(a) 1st Respondent appoints a reputable firm of registered public auditors within 30 days of the granting of this order to carry out an audit of its books, balance sheets and accounts referred in section 286 of the Urban Councils Act [Chapter 29:15] for the financial years ending 30th June 2014-2017.

(b) Further that, 1st Respondent produce to the auditors for the purpose of audit, accounts, balance sheets, all relevant books, papers, writings and minutes books in its possession for the financial years ending 30 June 2014-2017 within 30 days of the granting of this order.

(c) Further, that, 1st Respondent prepare and present before this court a comprehensive report within the first 90 days of the granting of this order, detailing how it has complied with this order and at 180 days mark, an audit report for the financial years ending 30th June 2014-2017 as provided under section 306(3) of the Urban Councils Act [Chapter 29:15] failure which 1st Respondent shall be in contempt of court.

3. 1st Respondent will pay costs of suit on a legal practitioner-client scale.”

Facts

From 10 to 19 December 2015, the second respondent embarked on an institutional special investigative audit report at the first respondent's institution following complaints that the first respondent's, the City Council, employees were being owed salary arrears of eighteen months.

Obviously, the report by the Ministry was adverse and revealed anomalies committed by Mutare City Council.

The applicant accessed the investigative report and offered to assist the City Council.

The City Council refused and the applicant wrote threatening letters to the first respondent and indicated to Municipality of Mutare that it was going to advise residents to boycott payment of utility bills until the City Council met their demands.

The City Council responded encouraging dialogue, and, further letters were exchanged and the letter of 16 April 2018, written by the applicant's legal practitioners, proposed a tripartite meeting between the applicants, the City Council officials, and the residents and ratepayers on the other side.

No meeting was held.

The City Council supplied some information in June 2018, availing to the applicant schedules of Zinara funds, education levy, and outstanding debts due to the Council per ward.

The applicant was not amused by the conduct of the City Council, and, on the 4th of July 2018, this application was filed at the court.

The first respondent, the City Council, is opposing the application.

The first respondent raised three points in limine;

(i) The first one being that of locus standi in judicio;

(ii) The second one is that the relief sought is vague, imprecise, and unusual; and

(iii) The third and final one is that the applicant did not exhaust domestic remedies.

On the other hand, after receiving the first respondent's opposing papers, the applicant, in its replying affidavit, also introduced the fourth point in limine before this court, challenging the authority of Mr Joshua Maligwa in preparing the opposing affidavit without a resolution of the City Council.

On that note, the applicant proposed to the court, that, there is no valid opposition and the application has to be granted.

On the date of hearing of the application, I granted the first respondent an opportunity to address the court, first, focusing on all the points in limine - including that raised by the applicant.

After the first respondent had addressed the court, the applicant was given the opportunity to reply and address the court on the question of Mr Maligwa's lack of authority....,.

Whether the sought relief is vague, imprecise and unusual

The first respondent submitted, that, the relief being sought is incompetent and cannot be granted in the circumstances.

The applicant seeks an interdict in the form of a mandamus and structural interdict; in addition, the applicant seeks a declaratur. The cover of the court application reads:

“Court application for an order of Declaratur, Mandamus, Structural Interdict and Ancillary Relief”

According to the first respondent, this clearly demonstrates the ineptitude and the irrationality of the relief that is being sought.

The first respondent submitted, that, the applicant has not proved the requirements of an interdict nor does the affidavit outline the allegations or facts which establish such pre-requisites. The applicant has not demonstrated that it has a clear right to compel the first respondent to do an audit. The applicant falsely believes, that, by forming a Trust, it grants it an automatic right to compel the first respondent to abide by its demands; there is no contract of such a right to compel the first respondent.

The applicant must aver or adduce evidence to establish such a right and it has failed.

The first respondent further added, that, the applicant has dismally failed to demonstrate on its papers any potential harm it may suffer or its beneficiaries may suffer if the relief it seeks is not granted.

The first respondent added, that, the application should also fail on the basis that there are other remedies available to the applicant; the applicant has not approached the Minister, the second respondent, to exhaust domestic remedies.

Where there is an alternative remedy, there is no basis for seeking the interdict.

The first respondent also impugned the applicant for failing to demonstrate the requirements of a structural interdict; that is, by proving that there is inefficiency in the system, and, as such, there will be need to be controlled.

The applicant did not manage to prove that there is incompetence or gross inefficiency which warrants the imposition of a structural interdict.

The first respondent cited the case of Kenton on Sea Ratepayers Association & Ors v Ndlambe Local Municipality 2017 (2) SA 86 (ECG).

The City Council also pointed out the dangers associated with structural interdicts, moreso, in that it violates the concept of separation of powers.

The court would end up treading into institutional spheres of control and result into undue interference with other spheres of governance.

The final point hammered by the first respondent is that even for a declaratur, the applicant failed to meet the requirements of section 14 of the High Court Act by failing to demonstrate the existing, future right which will be affected if the court does not give judgment.

It prayed for the dismissal of the application.

The first respondent cited the matter of Johnson HFC 1995 (1) ZLR 65 (S)…,.; GUBBAY CJ held:

“The condition precedent to the grant of a declaratory order under section 14 of the High Court of Zimbabwe Act 1981 is that the applicant must be an 'interested person' in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the Court. The interest must concern an existing, future, or contingent right. The Court will not decide abstract, academic, or hypothetical questions unrelated thereto. But, the presence of an actual dispute or controversy between the parties interested is not a pre-requisite to the exercise of jurisdiction.”

This point in limine lies on the borderline of law and fact.

In my view, these issues dealt with herein would have been appropriately dealt with in the main, that is, on the merits.

However, the first respondent's submission is that the applicant did not crisply, in its founding papers, exhaustively encapsulate these ingredients in order to achieve its intended purpose. Such a failure should putatively paralyse the application and this court should uphold the preliminary point and dismiss the application.

Apparently, the face of the court application is a mixed bag of separate reliefs “God's plenty” and like a hunter's arrow any prey can be caught and the hunter will attain his purpose of a catch.

I agree with the first respondent that the relief being sought is vague and embarrassing.

An examination of the affidavit, in conjunction with the draft order, indeed causes concern and the applicant ought to have crisply tabulated its facts and the draft, sealing, clearly, the relief sought.

The basis upon which the ultimate relief is premised was not established and I accordingly uphold this preliminary point.

HH109-08 : LLOYD GAMBIZA vs PIKIRAI TAZIVA
Ruled By: GOWORA J

On 1 March 2007, the plaintiff issued summons out of this court for an order as follows:“(a) An order declaring the agreement, Annexure A to the particulars of the claim, dated 18 December 2006, to have been validly cancelled and incapable of performance.(b) An order for the return to the ...

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Cause of Action re: Mutually Exclusive Composite, Consolidated or Conflated Causes of Action and Alternative Pleas

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CC03-19 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS ZIMBABWE and CAIRNS FOODS LTD
Ruled By: MALABA CJ, GARWE JCC and MAKARAU JCC

CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

CC14-20 : HILTON CHIRONGA and RASHID MAHIYA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HOME AFFAIRS and MINISTER OF DEFENCE and GOVERNMENT OF ZIMBABWE
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATHSWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

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HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

HB38-11 : JONATHAN NATHANIEL MOYO vs JOHN LANDA NKOMO and DUMISO DABENGWA
Ruled By: BERE J

SC70-19 : ADRIAN READ vs JOHN GARDINER and SAFARI HUNTERS (PRIVATE) LIMITED
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

HMT03-19 : THE TRUSTEES OF THE UNITED MUTARE RESIDENTS AND RATEPAYERS TRUST (UMRRT) vs CITY OF MUTARE and THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS & NATIONAL HOUSING
Ruled By: MUZENDA J

HH109-08 : LLOYD GAMBIZA vs PIKIRAI TAZIVA
Ruled By: GOWORA J

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Law Portal Zimbabwe

Cause of Action re: Mutually Exclusive Composite, Consolidated or Conflated Causes of Action and Alternative Pleas

View Appeal CC03-19 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS ZIMBABWE and CAIRNS FOODS LTD Ruled By: MALABA CJ, GARWE JCC and MAKARAU JCC

CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

View Appeal HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS Ruled By: ZHOU J, CHAREWA J and MUSHORE J

HB38-11 : JONATHAN NATHANIEL MOYO vs JOHN LANDA NKOMO and DUMISO DABENGWA Ruled By: BERE J

SC70-19 : ADRIAN READ vs JOHN GARDINER and SAFARI HUNTERS (PRIVATE) LIMITED Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE Ruled By: GWAUNZA JA

HMT03-19 : THE TRUSTEES OF THE UNITED MUTARE RESIDENTS AND RATEPAYERS TRUST (UMRRT) vs CITY OF MUTARE and THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS & NATIONAL HOUSING Ruled By: MUZENDA J

HH109-08 : LLOYD GAMBIZA vs PIKIRAI TAZIVA Ruled By: GOWORA J

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View Appeal
CC03-19 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS ZIMBABWE and CAIRNS FOODS LTD
Ruled By: MALABA CJ, GARWE JCC and MAKARAU JCC

CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

HB38-11 : JONATHAN NATHANIEL MOYO vs JOHN LANDA NKOMO and DUMISO DABENGWA
Ruled By: BERE J

SC70-19 : ADRIAN READ vs JOHN GARDINER and SAFARI HUNTERS (PRIVATE) LIMITED
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

HMT03-19 : THE TRUSTEES OF THE UNITED MUTARE RESIDENTS AND RATEPAYERS TRUST (UMRRT) vs CITY OF MUTARE and THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS & NATIONAL HOUSING
Ruled By: MUZENDA J

HH109-08 : LLOYD GAMBIZA vs PIKIRAI TAZIVA
Ruled By: GOWORA J