On 25 January 2022, the applicant filed an application seeking direct access to this Court in terms of section 167(5)(a) of the Constitution of Zimbabwe 2013 (“the Constitution”) as read with Rule 21(2) of the Constitutional Court Rules 2016 (“the Rules).
If leave is granted, it is his intention to file an application in terms of section 85(1) of the Constitution for the vindication of two of the fundamental rights that he alleges were violated by a High Court decision.
The two fundamental rights in question are the right to access the courts and the right to equal protection and the benefit of the law, respectively.
The allegation made in the application is that the common law remedy that permits execution of a judgment pending appeal violates the Constitution.
FACTUAL BACKGROUND
The respondent is a common law universitas that is governed by its constitution. It is a church with various stations throughout the country. The applicant is a former member of the respondent's executive leadership structure.
The facts surrounding this dispute are mostly common cause.
Over an extended period of time, the respondent's executive, which included the applicant, wrangled over the control of the respondent and its assets. The dispute spilled into the courts, initially the High Court. The High Court found in favour of the other members of the executive and declared them as the duly authorised representatives of the respondent. It also gave them the right to possess and control the assets in dispute.
The applicant was aggrieved. He noted an appeal to the Supreme Court.
On 28 May 2021, the Supreme Court rendered its judgment in which it upheld the judgment of the High Court. The court determined, that, the other members of the executive were the duly authorised representatives of the respondent. The applicant was ordered to pay costs.
At the core of the dispute was the right to occupy Stand 696 New Ardlyn, Westgate, Harare. This property had previously been under the stewardship of the applicant.
Consequent to the Supreme Court's decision, the applicant and his acolytes voluntarily departed from Stand 696 New Ardlyn, Westgate, Harare. However, on 11 October 2021, the applicant returned and unlawfully appropriated the aforesaid premises from the respondent's elected officials.
An application for a mandament van spolie was filed by the respondent, under a certificate of urgency, for the ejection of the applicant from the premises. The application succeeded. The High Court ordered that the applicant be ejected and that the possession thereof be restored to the respondent's executives.
Aggrieved with the decision of the High Court, the applicant appealed to the Supreme Court. In response, the respondent, under HC6465/21, applied for leave to execute the judgment pending the determination of the appeal.
During the hearing of the application for leave to execute the judgment pending appeal, the applicant made an application for a referral to this Court of a constitutional question on the basis of certain constitutional issues that he alleged emanated from the matter.
The crux of his challenge was whether the common law remedy of execution pending appeal was consistent with the Constitution.
The application was opposed by the respondent. It argued that the request was frivolous and vexatious. It contended that there was no violation of any constitutional provisions in the intended application for relief before the High Court.
On 13 January 2022, the High Court rendered its judgment on the application for a referral of the matter to the Constitutional Court.
The court a quo refused the application. It ruled that it lacked merit.
The court a quo reasoned, further, that, there was nothing unconstitutional for a court to order the execution of its own judgment pending appeal as the law permitted this exercise of discretion on the part of the High Court. It thereafter proceeded to determine the merits of the respondent's application for execution pending appeal.
The court a quo noted, that, the applicant had previously vacated the premises in question in compliance with an order of court. However, he had reclaimed control through violent means, and, as a consequence, the noting of the appeal was meant to deny the respondent's representatives access to the property in question whilst he contested the right to control the assets of the respondent.
It is that determination which forms the basis of the present application that is before the Court.
In casu, the applicant seeks to challenge the determination by the High Court. He avers that its decision was wrongful because his request was neither frivolous nor vexatious. It is submitted, on his behalf, that, the prospective substantive application enjoys considerable prospects of success.
The application is opposed.
The respondent submits, that, the present application is frivolous and vexatious. It avers that its effect is meant to frustrate the effect of various judgments that have been granted against the applicant.
The major part of the reasons for opposing the application constitute legal argument, which I will advert to later in the judgment.
APPLICANT'S SUBMISSIONS BEFORE THIS COURT
The applicant advances the argument, that, once an appeal is before the Supreme Court, the court a quo ceases to have jurisdiction over the matter.
He contends, that, this is the essence of section 162 of the Constitution as read with sections 168 and 169 thereof.
It is contended on his behalf, that, the common law rule of execution pending appeal runs contrary to the principle of law that only the Supreme Court has power over its own rules and orders.
In addition, the applicant argues that the established hierarchy of the Courts is disrupted by the common law remedy, which enables the High Court to determine a matter pending before the Supreme Court.
He submits, that, the High Court would, on that premise, be taking sides in the appeal under the guise of determining the prospects of success.
The applicant posits, that, in that process, the right of access to the appellate court is impinged upon by the interference of the High Court.
Despite the right of appeal against any determination by the High Court, the applicant submits that there is no alternative remedy available to him.
Counsel for the applicant submitted, that, the applicant's constitutional rights were violated by the High Court's refusal to refer the constitutional question to the Constitutional Court.
Questioned by the Court as to whether the applicant was challenging the procedural or substantive propriety of the court a quo's decision, he submitted that there was no distinction between the two.
He asserted, that, the established jurisprudence of the Court merely highlighted that once a wrong decision has been made, it can be challenged both procedurally and substantively in a superior court. According to him, the only permissible exception is a Supreme Court decision due to its status as a final decision of the apex court in non-constitutional matters.
Counsel for the applicant submitted, further, that, the court a quo did not apply the established test under section 175(4) of the Constitution to determine whether the application for referral was frivolous or vexatious.
He made reference to the judge a quo's alleged failure to explicitly state whether the application was frivolous or vexatious as evidence of a wrong approach that ultimately led to a wrong decision.
It was contended, that, the constitutional issue of the High Court's jurisdiction to determine applications for leave to execute pending appeals was not addressed and that the matter was neither frivolous nor vexatious.
In response to the Court's question as to whether there was an adherence to the Rules in respect of the application filed before the High Court, counsel for the applicant submitted, that, Rule 24(4) of the Constitutional Court Rules 2016 did not apply as there were no disputes of fact between the parties.
He contended, further, that, the applicant's right to access under section 69(3) of the Constitution was violated by the law which gives the High Court the power to determine applications for leave to execute pending appeals.
Counsel for the applicant added, that, given that the Supreme Court becomes seized with a matter upon the noting of an appeal, it is befitting that this Court decides the issue of which court had jurisdiction over such an application.
In discourse with counsel, the Court noted that the High Court was not disabled by any law from entertaining applications for leave to execute pending an appeal.
The Court further quizzed counsel on the issue of an alternative remedy available to the applicant.
Counsel for the applicant conceded, that, the applicant could have sought leave to appeal against the decision by the High Court.
However, he submitted that the remedy was not practical as the same arguments would be regurgitated in the High Court and Supreme Court on appeal.
Counsel for the applicant countered by proposing, that, in the event the High Court's present authority was held as being unconstitutional, the Court was at large to utilise its just and equitable powers, under section 175(6) of the Constitution, to ensure that the legislature is given adequate time to address the lacuna that would arise as a result of its determination in the applicant's favour.
Counsel for the applicant argued, that, the respondent had not addressed the Court on whether or not there was an infringement of the right of access to a court under section 69(3) of the Constitution.
He submitted, that, the question was important as it brings into focus the issue as to whether the court a quo's determination rendered the appeal in the Supreme Court academic.
Counsel for the applicant reiterated that the applicant was challenging the authority of the lower court to deal with a matter that was pending before the Supreme Court.
He reasoned, that, alternatively placing the application before a different Judge in the High Court would suggest a concession that the alternative remedy was readily accessible.
RESPONDENT'S SUBMISSIONS
Per contra, counsel for the respondent submitted, that, there was a pending matter in the Supreme Court on the substance of the dispute between the parties.
However, he abandoned this line of argument after the Court pointed out that the question of the jurisdiction of the High Court was not pending before the Supreme Court.
